Holman v. Oriental Refinery, 7537

Citation75 N.M. 52, 1965 NMSC 29, 400 P.2d 471
Case DateMarch 22, 1965
CourtSupreme Court of New Mexico

Page 471

400 P.2d 471
75 N.M. 52
Harvey L. HOLMAN, Plaintiff-Appellee,
v.
ORIENTAL REFINERY, Oriental Blue Streak, and London
Guarantee and Accident Company,
Defendants-Appellants.
No. 7537.
Supreme Court of New Mexico.
March 22, 1965.

[75 NM 53]

Page 472

Keleher & McLeod, Russell Moore, Albuquerque, for appellants.

Sheehan & Duhigg, Albuquerque, for appellee.

MOISE, Justice.

Appellants, employer and insurer, hereinafter collectively called 'employer' present three points relied on for reversal of a judgment granting recovery to appellee-employee based on 30% disability under the New Mexico Occupational Disease Disablement Law (Secs. 59-11-1 to 59-11-42, N.M.S.A.1953). They are:

1. That the act is sui generis, and that the rules of civil procedure are not applicable to actions brought thereunder. The specific question has to do with whether Rule 15(c) (Sec. 21-1-1(15)(c) N.M.S.A.1953), dealing with relation back of amended pleadings, is applicable.

2. That the first amended complaint was not verified and was accordingly fatally defective.

[75 NM 54] 3. That an employee is not entitled to recover under the act if, after being incapacitated by the occupational disease he earns or is able to earn as much or more than he did before.

The court found that the employee worked as a gasoline station attendant for employer; that during November, 1961 employee first became aware of swelling and itching of his arms and body, severe headaches, nausea, and lack of appetite. The condition resulted from an allergy to gasoline containing lead and its poisonous compounds, and was first diagnosed as such by a doctor on January 9, 1962. The doctor recommended that employee get a different job. A letter from the doctor to this effect was shown to employee's superior some time before January 28, 1962, on which date the employment was terminated. On March 2, 1962, what was denominated a 'Workmen's Compensation Complaint' was filed in district court. In November, 1962, pursuant to motion theretofore filed, permission to file an amended complaint was granted, and employee's first amended complaint stating a claim under the New Mexico

Page 473

Occupational Disease Disablement Laws was filed. At the time of trial employee was receiving more pay in his new job than he received when he worked for employer. Employee was determined to be 30% disabled, and was awarded compensation accordingly.

Section 59-11-30, N.M.S.A.1953, provides that compensation under the act is barred unless written claim is filed with the court within 90 days after the beginning of the disablement where the same results from poisoning by benzol or its poisonous derivatives. The employee first became aware that his difficulties resulted from an allergy on January 9, 1962. The first claim under the Occupational Disease Disablement Law was filed November 16, 1962. While asserting that the employee knew of his condition and its cause in November, 1961, and that the 90-day limitation period should be computed from then, employer argues that even when the date of January 9, 1962 is used, the claim was still barred because not filed until November 16, 1962. Its position is correct if the amended complaint in which the claim under the Occupational Disease Disablement Act was first asserted is not an amendment which could be related back to March 2, 1962, when the 'Workmen's Compensation Claim' was filed.

That workmen's compensation statutes are sui generis, and that the rules of procedure in civil actions are not applicable except as specifically provided therein, has been long recognized by us. Lipe v. Bradbury, 49 N.M. 4, 154 P.2d 1000; Hudson v. Herschbach Drilling Co., 46 N.M. 330, 128 P.2d 1044. Also, as was noted in Guthrie v. Threlkeld Co., 52 N.M. [75 NM 55] 93, 192 P.2d 307, 'special statutory * * * proceedings where existing rules are inconsistent * * *' are specifically excepted from the operation of our rules of civil procedure. (Sec. 21-1-1(1), N.M.S.A.1953) In Armijo v. United States Casualty Company, 67 N.M. 470, 357 P.2d 57, we held the summary judgment procedure of our rules inapplicable. Prior to amendment of our workmen's compensation statute in 1959 (Sec. 59-10-13.9, N.M.S.A.1953) there was no provision in the workmen's compensation law for application of any of the rules of civil procedure. Since the effective date of Sec. 59-10-13.9, supra, a different situation exists. Now the rules of civil procedure apply '* * * except where provisions of the Workmen's Compensation Act directly conflict with these rules * * *.'

We find in Sec. 59-11-16, N.M.S.A.1953, a sentence reading: 'Except as otherwise provided herein the procedure in such causes [Occupational Disease Disablement cases] shall as nearly as possible follow the procedure in civil cases.' In our view, this language is comparable to Sec. 59-10-13.9, supra, of our present workmen's compensation law and under the rules noted above requires application of the rules of civil procedure in cases arising under the Occupational Disease Disablement Law unless not reasonable to do so. We perceive of no reason why it is not possible to apply Sec. 21-1-1(15)(c), supra.

That the requirement that a written claim be filed within 90 days is mandatory, we do not doubt. Compare Reed v. Fish Engineering Corp., 74 N.M. 45, 390 P.2d 283. Unless we can say that the filing of the 'workmen's compensation claim' on March 2, 1962, may be considered as the 'written claim' required by Sec. 59-11-30, supra, or the amendment related back to that date, the claim would be forever barred. An examination of the complaint discloses that it sought judgment for total and permanent disability and medical bills because of alleged accidental injury resulting from breathing gasoline fumes in the course of and incident to employee's employment as a station manager by employer. In the first amended complaint employee sought compensation for total and permanent disability under the provision of the Occupational...

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16 cases
  • Zoss v. United Bldg. Centers, Inc., s. 19764
    • United States
    • Supreme Court of South Dakota
    • 16 d3 Julho d3 1997
    ...Zoss cites are equally unavailing. See Herrera v. Fluor Utah, Inc., 89 N.M. 245, 550 P.2d 144 (App.1976); Holman v. Oriental Refinery, 75 N.M. 52, 400 P.2d 471 ¶11 More recent decisions from New Mexico and other states contradict the narrow definition Zoss advocates. In Rader v. Don J. Cumm......
  • Bryant v. Lear Siegler Management Services Corp., 13486
    • United States
    • Court of Appeals of New Mexico
    • 8 d4 Abril d4 1993
    ...unable to perform any work in the occupation in which the worker was engaged. Section 52-3-4(D)(1); see Holman v. Oriental Refinery, 75 N.M. 52, 58-59, 400 P.2d 471, 476 (1965) (interpreting earlier version of statute, noted that language of ODDL is more definite and specific than parallel ......
  • Malone v. Swift Fresh Meats Co., 11688
    • United States
    • Supreme Court of New Mexico
    • 2 d4 Fevereiro d4 1978
    ...1087 (1950). This rule is applicable in workmen's compensation claims where the amendment is made before trial. Holman v. Oriental Refinery, 75 N.M. 52, 400 P.2d 471 (1965); Hudson v. Herschbach Drilling Co., 46 N.M. 330, 128 P.2d 1044 Relationship of the Two Claims The question now is whet......
  • Herrera v. Fluor Utah, Inc., 2221
    • United States
    • Court of Appeals of New Mexico
    • 27 d2 Abril d2 1976
    ...of obtaining employment in other fields must be considered, has been foreclosed by our Supreme Court's decision in Holman v. Oriental Refinery, 75 N.M. 52, 400 P.2d 471 (1965). In that case the Court held that 'pursuit' meant 'occupation' or 'vocation'. The result was that the court granted......
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