Beckwith v. Cactus Drilling Corp.

• Citation: 84 N.M. 565,505 P.2d 1241,1972 NMCA 168
• Decision Date: 30 November 1972
• Docket Number: No. 930,930
• Parties: Allen BECKWITH, Plaintiff-Appellee, v. CACTUS DRILLING CORPORATION and Liberty Mutual Insurance Company, Defendants-Appellants, Consolidated for trial with Allen BECKWITH, Plaintiff-Appellee, v. McVAY DRILLING COMPANY and Reliance Insurance Company, Defendants-Appellants.
• Court: Court of Appeals of New Mexico

Page 1241

505 P.2d 1241

84 N.M. 565

Allen BECKWITH, Plaintiff-Appellee, v. CACTUS DRILLING CORPORATION and Liberty Mutual Insurance

Company, Defendants-Appellants, Consolidated for trial with

Allen BECKWITH, Plaintiff-Appellee, v. McVAY DRILLING COMPANY and Reliance Insurance Company,

Defendants-Appellants.

No. 930.

Court of Appeals of New Mexico.

Nov. 30, 1972.

Rehearing Denied Dec. 22, 1972.

Certiorari Denied Jan. 26, 1973.

Sam Laughlin, Jr., R. E. Richards, Girand & Richards, P.A., Hobbs, for Cactus Drilling Corp. and Liberty Mutual Ins. Co

Dewie B. Leach, Hobbs, for McVay Drilling Co. and Reliance Ins. Co.

Warren F. Reynolds, Easley & Reynolds, Hobbs, for plaintiff-appellee.

OPINION

WOOD, Chief Judge.

Beckwith suffered two accidents arising out of and in the course of his employment. The respective defendants--Cactus (Cactus Drilling Corporation and Liberty Mutual Insurance Company) and McVay (McVay Drilling Corporation and Reliance Insurance Company)--appeal from a judgment in favor of Beckwith. The issues concern: (1) actual knowledge of injury; (2) partial disability; and (3) liability for medical treatment.

Actual knowledge of injury.

The trial court found, as to each of the claims, that the respective defendants had actual knowledge, within thirty days, of the accident '* * * and that plaintiff suffered compensable injuries as a result thereof.' Neither Cactus nor McVay challenge the finding as to actual knowledge of the accident; both challenge the finding as to actual knowledge of compensable injury.

The problem arises because of evidence of more than one injury in each accident. Cactus admits knowledge of a compensable injury to Beckwith's left leg. There is evidence that Beckwith also sustained an injury to his low back in the Cactus accident. Cactus claims it had no notice, within the statutory period, of the low back injury. There is no claim of latent injury.

There is evidence that McVay had actual knowledge of a compensable injury to Beckwith's right leg. There is evidence that Beckwith also sustained an injury to his cervical and thoracic spine in the McVay accident. McVay claims it had no notice, within the statutory period, of the injury to the spine. Again, there is no claim of latent injury.

The record supports the contention of defendants concerning lack of notice, within the statutory period, of the low back and cervical and thoracic spine injuries. The issue is whether notice of those injuries was required under our statutory provisions. Cactus and McVay assert they are not liable for any injury absent notice of that injury. Beckwith contends once the defendants had notice of any compensable injury resulting from the accident involved the notice requirement was satisfied. See Geeslin v. Goodno, Inc., 77 N.M. 408, 423 P.2d 603 (1967).

Our answer is reached by considering the legislative history of the statute and applying that statute as enacted by the Legislature.

Section 59--10--13.4 N.M.S.A.1953 (Repl.Vol. 9, pt. 1) was enacted in 1959. The prior statutory provision for notice was repealed by Laws 1959, ch. 67, § 32. The prior statute, § 59--10--13, N.M.S.A.1953 (Orig.Vol. 9) and the current statute, § 59--10--13.4, supra, have similar provisons concerning written notice. Both refer to written notice of 'accident' and 'injury.' The trial court made no findings concerning written notice; the appeal is presented as an 'actual knowledge' question. We point out the parallel requirements of notice of 'accident' and 'injury' where the notice is written because statutory provisions for 'actual knowledge' have never required knowledge both of accident and injury.

The prior statute, § 59--10--13, supra, stated that written notice was not required '* * * where the employer or any superintendent or foreman or other agent in charge of the work in connection with (which) such injury occurred had actual knowledge of the occurrence thereof. * * *' (Our emphasis). Section 59--10--13.4(B), supra, removes the requirement of written notice '* * * where the employer or any superintendent or foreman or other agent in charge of the work in connection with which the accident occurred had actual knowledge of its occurrence.' (Our emphasis). Wilson v. Navajo Freight Lines, Inc., 73 N.M. 470, 389 P.2d 594 (1964) states: (a) 'occurrence' in § 59--10--13.4(B), supra, means the 'accident' and (b) the change from 'injury' to 'accident' was a significant one. See also Roberson v. Powell, 78 N.M. 69, 428 P.2d 471 (1967).

Since 1959, our statutory notice provision has not required actual knowledge of injury to avoid the requirement of written notice; only actual knowledge of the accident is required. Dicta in Waymire v. Signal Oil Field Service, Inc., 77 N.M. 297, 422 P.2d 34 (1966) supports this view. See also Collins v. Big Four Paving Inc., 77 N.M. 380, 423 P.2d 418 (1967).

New Mexico appellate decisions have not applied the statute as enacted in 1959. Even while recognizing the change from actual knowledge of injury to actual knowledge of the accident, Roberson v. Powell, supra, states '* * * the knowledge must be of an accident and compensable injury. * * *' Wilson v. Navajo Freight Lines, Inc., supra, impliedly applies the same rule. This court has followed Roberson v. Powell, supra. See Clark v. Duval Corporation, 82 N.M. 720, 487 P.2d 148 (Ct.App.1971); Lyon v. Catron County Commissioners, 81 N.M. 120, 464 P.2d 410 (Ct.App.1969); Smith v. State, 79 N.M. 25, 439 P.2d 242 (Ct.App.1968).

We do not attempt to list all of the cases applying the rule stated in Roberson v. Powell, supra, in 'actual knowledge' cases. According to Roberson the rule has existed since Ogletree v. Jones, 44 N.M. 567, 106 P.2d 302 (1940). Ogletree, an 'actual knowledge' case concerned with the sufficiency of notice of injury, states: '* * * the knowledge which the employer must have to excluse a formal notice is of a compensable injury. * * *' (Our emphasis). For this knowledge to exist, the employer must have knowledge of what caused the injury; thus, knowledge of the accident. Ogletree was decided when the statute required actual knowledge of an injury; not of an accident. Although Ogletree imposed the requirement of actual knowledge of both an accident and injury, that decision is not authority for continuing a two-fold requirement when the statutory change in 1959 removed the requirement of actual knowledge of injury.

Roberson v. Powell, supra, and the decisions applying the Roberson rule since the 1959 legislative change, are erroneous for two reasons. The two-fold rule disregards the legislative change, yet '* * * we must presume that the legislature, in enacting a statute, intended to change the law as it had theretofore existed. * * *' Bettini v. City of Las Cruces, 82 N.M. 633, 485 P.2d 967 (1971). The two-fold rule would add words to § 59--10--13.4(B), supra. With the added words, the statute would provide that written notice is not required where the employer '* * * in charge of the work in connection with which the accident occurred had actual knowledge of its occurrence and actual knowledge of a compensable injury.' The emphasized words are not part of the statute as enacted by the Legislature. '* * * We are not permitted to read into a statute language which is not there, particularly if it makes sense as written. * * *' State ex rel. Barela v. New Mexico State Bd. of Ed., 80 N.M. 220, 453 P.2d 583 (1969). Section 59--10--13.4(B), supra, makes sense as written.

We recognize that the purpose of the notice requirement is: (a) to enable the employer to investigate the accident while the facts are accessible and (b) if necessary, to employ doctors to speed recovery. Waymire v. Signal Oil Field Service, Inc., supra; see Clark v. Duval Corporation, supra; Larson's Workmen's Compensation Law, § 78.20 (1971). Purpose (a) is met when the employer has actual knowledge of the accident. Purpose (b) will not necessarily be met since § 59--10--13.4(B), supra, does not require the employer to have actual knowledge of an injury. Without such knowledge, the employer may not know of the need for any medical attention. It may be that a dual requirement of actual knowledge of accident and injury, similar to the written notice requirement, would be an appropriate provision. Yet, the Legislature, by the change enacted in 1959, eliminated the requirement of actual knowledge of injury. If this change defeats the purpose of notice requirements, it is a matter for legislative consideration.

Since Cactus and McVay had actual knowledge of Beckwith's two accidents, the notice requirement was satisfied. Thus, defendants' claim of lack of notice of the low back and spine injuries is without merit.

Partial disability.

The trial court found that Beckwith had a 15% partial permanent disability by reason of the accidental injury to his back. Cactus asserts there is no evidence to support this finding. Cactus does not contend there is an absence of evidence that a disability existed or that the disability was caused by the accident. The claim is directed to the amount of the disability--the 15%.

We need not review the evidence in detail. A doctor testified that as a result of the various injuries, Beckwith had a 50% disability to the body as a whole. Apportioning the disability to the various injuries, the doctor attributed a 10% disability to the low back injury and 5% disability to the aggravation of the pre-existing low back problem. See Reynolds v. Ruidoso Racing Association Inc., 69 N.M. 248, 365 P.2d 671 (1961). This medical evidence, together with evidence that Beckwith had never been bothered with his low back prior to the Cactus accident and evidence of the limitation on his ability to work due to his low back condition subsequent to the accident, is substantial evidence to support the finding. Lucero v. Los Alamos Constructors, Inc., 79 N.M. 789, 450 P.2d 198 (Ct.App.1969).

Liability for medical treatment.

A...