Casias v. Zia Co.

• Decision Date: 17 May 1979
• Docket Number: No. 3842,3842
• Citation: 93 N.M. 78,1979 NMCA 68,596 P.2d 521
• Parties: Ramon R. CASIAS, Plaintiff-Appellee, v. The ZIA COMPANY, Employer, and United States Fidelity and Guaranty Company, Insurer, Defendants-Appellants.
• Court: Court of Appeals of New Mexico

Page 521

596 P.2d 521

93 N.M. 78

Ramon R. CASIAS, Plaintiff-Appellee, v. The ZIA COMPANY, Employer, and United States Fidelity and Guaranty Company, Insurer, Defendants-Appellants.

No. 3842.

Court of Appeals of New Mexico.

May 17, 1979.

Walter J. Melendres, John K. Silver, Montgomery, Andrews & Hannahs, Santa Fe, for defendants-appellants.

John Wentworth, Steven L. Tucker, Jones, Gallegos, Snead & Wertheim, Santa Fe, for plaintiff-appellee.

OPINION

WALTERS, Judge.

Appellants urge that plaintiff-appellee Casias was awarded total disability benefits at an incorrect rate because the accident occurred on October 7, 1976 and he became totally and permanently disabled on August 28, 1977, during which time the percentage of the average weekly wage in the state (See § 52-1-41(A), N.M.S.A.1978), upon which maximum compensation is based, increased from 78% To 89%. Appellants contend the lower rate should have been applied against the average weekly wage on October 7, 1976 because § 52-1-20, N.M.S.A.1978, provides for determination of the weekly wage "at the time of the accident."

It appears, from an analysis of the two sections above referred to, that the terms "time of the accident" (§§ 52-1-20 A, -20 B(1), -(2), -(3), and -(4); "time of injury" (§ 52-1-20 B); "date of disability" (§ 52-1-40); and "date of accidental injury" (§ 52-1-40), were used by the Legislature in the Workmen's Compensation Act with some lack of selectiveness. It, of course, is more frequently the case in workmen's compensation suits that the date of the accident, the injury, and the disability, all coincide. But when there is a lapse of time between any of those incidents, appeals of the present nature have resulted and they have become the fiber from which the decisions of LaMont v. New Mexico Military Inst., 92 N.M. 804, 595 P.2d 774 (Ct.App., 1979); Herndon v. Albuquerque Pub. Schools, 92 N.M. 635, 593 P.2d 470 (1978) (rev'd on issue of attorney fees only)); Moorhead v. Gray Ranch Co., 90 N.M. 220, 561 P.2d 493 (Ct.App.1977); and De La Torre v. Kennecott Copper Corp., 89 N.M. 683, 556 P.2d 839 (Ct.App.1976), were fashioned. Each of those cases either interpreted the limitation section of the Act (now § 52-1-31, N.M.S.A.1978) to commence running when "the disability is discovered rather than from the accidental occurrence," De La Torre, supra at 686, 556 P.2d at 842, or that rate of compensation is "based upon the applicable law on the date of disability" rather than at the time of the accident, Moorhead, supra, 90 N.M. at 224, 561 P.2d at 497, because if the claimant suffers an accident in the course of his employment which does not disable but ultimately leads to a later "malfunction of the body" resulting in disability, the continuing pain and degenerating ability to function constitute the operative "accident" which brings about the compensable "accidental injury" on the date of disability, Moorhead; Herndon, supra.

Judge Sutin, in the Herndon opinion cited above, discussing the issue of "accidental injury" within the factual context of plaintiff's fall on June 4, 1975 and her inability to continue work on September 2, 1975, wrote:

Defendants argue that no decision in New Mexico "holds that any condition which develops pain but which does not result in malfunction of the body is 'injury caused by accident,' as required by Section 59-10-6 * * * ."

In support of this position, defendants rely strongly on Towle v. Department of Transportation, State Highway, 318 A.2d 71 (Me.1974) where the court held that a claimant, a street sweeping operator, who suffered a postural strain over a period of time had not suffered a "personal injury by accident arising out of and in the course of his employment." We note, however, that the court also stated that if the stress of labor aggravates or accelerates the development of a preexisting infirmity causing an internal breakdown of that part of the structure, a personal injury by accident does occur. This rule in Towle is the rule in New Mexico and applicable to the facts in the instant case. * * *

As we read Lyon (Lyon v. Catron County Commissioners, 81 N.M. 120, 464 P.2d 410) today, a workman has suffered an accidental injury if he (1) experiences preexisting back pain from a previous accident incurred during his employment, (2) continues in his normal employment under pain, (3) and subsequently suffers a ruptured disc evidenced by a severe nerve root pain, (4) which ruptured disc is caused or accelerated while working.

In the instant case, the accident was the strain on plaintiff's back initiated by the fall on June 4, 1975; the injury was the severe pain that disabled her. If this strain caused or accelerated a "collapse" from back weakness, it was a malfunction of the body and plaintiff suffered an accidental injury; if it did not, it was not accidental. Whether the injury was accidental due to the strain over a three month period of time was an issue of fact decided in plaintiff's favor.

It is necessary to reconcile these decisions relating to statute of limitation, date of injury, and rate of compensation issues, because at first blush one might believe that entirely different propositions were determined and should not be confused. We believe the decided cases have refined the meaning of entitlement to and the amount of compensation to some very basic principles, the Court always having in mind that the Act itself expresses the intention and policy of this State that employees who suffer disablement as a result of injuries causally connected to their work, shall not become dependent upon the welfare programs of the State, Codling v. Aztec Well Servicing Co., 89 N.M. 213, 549 P.2d 628 (Ct.App.1976), but shall receive some portion of the wages they would have earned, had it not been for the intervening disability, LaMont, supra ; and that the fundamental reason for its adoption was to protect the workman, Clark v. Electronic City, 90 N.M. 477, 565 P.2d 348 (Ct.App.1977). Those principles may be summarized as follows:

(1) The statute of limitation does not begin to run when a non-disabling accident occurs, but rather when the workman knows or should know that he has sustained a compensable injury as a result of the accident. Duran v. New Jersey Zinc. Co., 83 N.M. 38, 487 P.2d 1343 (1971); De La Torre, supra.

(2) Compensation is not payable until and unless a work-related accident produces an injury which becomes disabling. Willcox v. United Nuclear Homestake Sapin Co., 83 N.M. 73, 488 P.2d 123 (Ct.App.1971); Pacheco v. Springer Corp., 83 N.M. 622, 495 P.2d 800 (Ct.App.1972); Gomez v. Hausman Corp., 83 N.M. 400, 492 P.2d 1263 (Ct.App.1971); LaMont, Herndon, supra.

(3) The disabling event may occur many months or years after the work-related accident, LaMont, Gomez, supra, and then become compensable; or it may be the product of a new "accident" resulting from the bodily malfunction ultimately induced by the original injury, Herndon; Moorhead; De La Torre, supra.

(4) The rate of compensation, being intended to bear some relationship to the workman's wage earning capacity, Kendrick v. Gackle Drilling Co., 71 N.M. 113, 376 P.2d 176 (1962), is measured as of the time that wage-earning capacity is affected, i. e., the date of disability. LaMont; Moorhead, supra.

The logic which dictates that the reasoning expressed in the decided cases be considered together, with respect to limitations and rate of compensation, is demonstrated by pointing out that under § 52-1-29 the employee must, with one exception, give notice "of the accident And of the injury within thirty days after Their occurrence," but "at all events not later than sixty days after the occurrence of the Accident." These requirements have been interpreted to equate "accident" with "injury" in those cases where a latent injury is suffered, simply because an eligible workman shall not be required to report every accidental incident, whether disabling or not, at the peril of losing benefits for failure to do so should he at some later time become disabled from a seemingly insignificant incident. The court's discussion on this matter in Montell v. Orndorff, 67 N.M. 156, 353 P.2d 680 (1960), is illustrative of the policy considerations for such an interpretation. The construction there adopted has long been followed in this jurisdiction, E. g., Langley v. Navajo Freight Lines, Inc., 70 N.M. 34, 369 P.2d 774 (1962); Brown v. Safeway Stores, Inc., 82 N.M. 424, 483 P.2d 305 (Ct.App.1970). It was stated flatly, in Anaya v. Big Three Industries, Inc., 86 N.M. 168, 521 P.2d 130 (Ct.App.1974), that "(c)ompensation is paid only when there is a disability." It is clear from these cases that "date of accident" and "date of injury" have come to mean "date when compensable injury manifests itself."

Thus, to apply the same construction to all of the provisions of § 52-1-20 is not unique or startling. Subsection A defines "wages" as the money rate at which services are recompensable under the contract of hire "at the time of the accident." Subsection B requires computation of benefits upon the monthly, weekly, daily or hourly remuneration which the workman was earning "at the time of the injury." The further subsections under B all refer to "time of the accident." It is apparent that the Legislature used the two terms interchangeably and indiscriminately. We, therefore, apply the meaning "date when the compensable injury manifests itself" or "date when the workman knows or should know he has suffered a compensable injury" to all of the portions of the Workmen's Compensation Act where the terms "time of accident," "time of injury," "date of disability," "date of accidental injury," or words of similar import, are used, recognizing that in doing so we acknowledge the reality of possible latent injuries and that payment of compensation is a partial substitute for wages formerly earned by the workman at the time when he can no longer earn the same...