Duran v. New Jersey Zinc Co.

• Decision Date: 07 May 1971
• Docket Number: No. 549,549
• Citation: 82 N.M. 742,487 P.2d 170,1971 NMCA 73
• Parties: Manuel D. DURAN, Plaintiff-Appellee, v. The NEW JERSEY ZINC COMPANY, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 170

487 P.2d 170

82 N.M. 742

Manuel D. DURAN, Plaintiff-Appellee, v. The NEW JERSEY ZINC COMPANY, Defendant-Appellant.

No. 549.

Court of Appeals of New Mexico.

May 7, 1971.

Rehearing Denied June 1, 1971.

Writ of Certiorari Issued June 25, 1971.

Neil E. Weinbrenner, R. E. Riordan, Las Cruces, for appellant.

J. W. Reynolds, Robertson & Reynolds, Silver City, for appellee.

OPINION

DEE C. BLYTHE, District Judge.

Although defendant-appellant raises 16 points, mostly concerned with substantial evidence to support the trial court's findings of fact, the principal issue is whether the statute of limitations for filing a workmen's compensation claim is tolled while the workman remains employed in the same job by the same employer with no reduction in pay, but could not perform many of the duties of the job. From a judgment for the workman, the employer (a self-insurer) appeals. We reverse.

With certain differences which we deem immaterial, this case in on all fours with Cordova v. Union Baking Company, 80 N.M. 241, 453 P.2d 761 (Ct.App.1969). The applicable statute of limitations depends on when the cause of action accrued, and this in turn depends on when the workman became partially disabled under § 59--10--12.19 which reads:

'As used in the Workmen's Compensation Act * * * 'partial disability' means a condition whereby a workman, by reason of injury arising out of and in the course of his employment, is unable to some percentage-extent to perform the usual tasks in the work he was performing at the time of his injury and is unable to some percentage-extent to perform any work for which he is fitted by age, education, training, general physical and mental capacity and previous work experience.'

The injury in this case occurred November 13, 1963. At that time the statute of limitations for filing a workmen's compensation claim was contained in Laws of 1963, ch. 269, § 6, which read in part:

'A. If an employer or his insurer fails or refuses to pay a workman any installment of compensation to which the workman is entitled under the Workmen's Compensation Act, after notice has been given as required by Section 59--10--13.4, New Mexico Statutes Annotated, 1953 Compilation, it is the duty of the workman, insisting on the payment of compensation, to file a claim therefor as provided in the Workmen's Compensation Act, not later than one year after the failure or refusal of the employer or insurer to pay compensation. This one-year period of limitations shall not be tolled during the time a workman is employed by the employed (sic) by whom he was employed at the time of such accidental injury.'

The last sentence quoted above was changed by Laws of 1967, ch. 151, § 1, now compiled as § 59--10--13.6(A), N.M.S.A. 1953 (Supp.1969), to read as follows:

'* * * This one (1) year period of limitations shall be tolled during the time a workman remains employed by the employer by whom he was employed at the time of such accidental injury, not to exceed a period of one (1) year. * * *'

Duran, the workman in this case, left his employment with New Jersey Zinc Company on October 23, 1968, and the claim was filed on February 3, 1969. Since plaintiff was required to file his claim under the foregoing limitation statute (within one year of the failure or refusal to pay compensation) we must determine when the failure or refusal to pay occurred. It thus becomes necessary to examine the trial court's findings of fact pertaining to accrual and the evidence supporting such findings.

The crucial finding, which is challenged by the employer, is as follows:

'10. All physicians who treated the plaintiff for the accidental injury described herein released plaintiff to return to his full employment duties. It did not become and should not have become reasonably apparent to plaintiff that he had an injury on account of which he would have been entitled to Workmen's Compensation benefits.'

Another, and somewhat inconsistent, finding of the trial court then follows:

'11. Plaintiff's accidental injury on November 13, 1963, was serious and continued serious through 1968, but at no time did defendant fail or refuse to make compensation payments or furnish medical benefits.' (Emphasis added.)

It is apparent from two memorandum opinions filed by the trial judge that he was most concerned with the last clause of finding no. 11, however. His first memorandum opinion was against the workman, but this opinion was withdrawn by the second on the strength of Noland v. Young Drilling Company, 79 N.M. 444, 444 P.2d 771 (Ct.App.1968), where we said:

'* * * As soon as it becomes reasonably apparent, or should become reasonably apparent * * * to a workman that he has an injury on account of which he is entitled to compensation and the employer fails or refuses to make payment he has a right to file a claim and the statute begins to run from that date. There is nothing in the act as we read it which indicates that the running of the statute may be delayed until a more serious disability is ascertainable.' (Emphasis by trial court.)

In Noland no workmen's compensation was paid, and nothing in Union Baking indicates that such payment is a sine que non although this factor was there present. After all, payment of workmen's compensation, terminated by the workman's resuming full-time employment for his regular wages, hardly could be construed as 'failure or refusal of the employer or insurer to pay compensation', within the meaning of §...