Lozano v. Archer
| Decision Date | 04 December 1962 |
| Docket Number | No. 7131,7131 |
| Citation | 71 N.M. 175,376 P.2d 963,1962 NMSC 164 |
| Parties | Francisco LOZANO, Plaintiff-Appellee, v. B. F. ARCHER, d/b/a Archer Company of Hatch, New Mexico, Employer; and Commercial Insurance Company of Newark, New Jersey, also known as Firemen's Insurance Co. of Newark, New Jersey of the America Fore Loyalty Group, Insurer, Defendants-Appellants. |
| Court | New Mexico Supreme Court |
W. C. Whatley and R. E. Riordan, Las Cruces, for appellants.
Edward E. Triviz, Las Cruces, John A. Anderson, Lordsburg, for appellee.
This is an appeal from a judgment of the District Court of Dona Ana County awarding workmen's compensation benefits to Francisco Lozano for total permanent disability.
The appeal is based on two points. Point I asserts that the claim for compensation was barred for failure of the claimant to give timely written notice of the accident and injuries as required by Section 59-10-13.4, New Mexico Statutes Annotated; and Point II challenges the sufficiency of the evidence to sustain the findings of the court that the claimant as a result of the accidental injuries sustained has become and was unable to obtain and retain gainful employment, and had thus sustained entire loss of wage earning ability.
The undisputed facts as found by the court are that Lozano, 47 years old at the time of trial, was born in Jiminez, Chihuahua, Mexico. He came to this country in 1924, received his high school education at Hatch, New Mexico, where he has resided most of his life. He is married and has three minor children. From 1939 to 1942 he worked for Myers Company, a general merchandise and later farm implement store, in Hatch. Upon his return from military service in 1945, where he trained and served as an aircraft mechanic in the air force, he was re-employed by Myers Company, leaving it in 1946 to work for appellant, B. F. Archer Company of Hatch. This company is engaged in the sale, delivery and servicing of farm implements and equipment. Claimant worked continuously in this employment for 14 years or until about December 15, 1960, as a salesman, shop foreman, mechanic and overall general employee and was in charge of the implement department. His duties consisted of the handling, moving, lifting, pushing, arranging, repairing, installing and servicing, by himself and with others, of various kinds of heavy farming equipment and parts. The major part of his work involved physical exertion.
In 1948 the claimant sustained an injury to his back in the course of this employment for which he received no compensation but which necessitated the periodic wearing of a back brace. However, he continued to do everything he had previously done up until May, 1960.
About May 16, 1960, while helping two other employees move a piece of equipment weighing about 300 pounds, claimant either stumbled, tripped or his legs gave way causing him to drop his end of the equipment at which time he experienced pain in his back. The accident was immediately reported to Mrs. Archer, who served as office manager, and she sent claimant to a doctor in Hatch for examination and treatment. Thereafter on account of the back pain claimant restricted his physical activities at work but was paid the same wages of $100.00 per week plus a certain percentage of net proceeds at the end of the year. About August 18, 1960, a customer dropped a coil of wire weighing about 95 pounds on claimant's foot. This accident was reported to Mrs. Archer the same day and she called Dr. A. D. Maddox of Las Cruces requesting that he check the claimant's back as well as his foot, which was done. On the following day claimant returned to work on crutches which he used for a short period, but his ability to engage in any physical exertion progressively deteriorated until he was obliged because of pain and suffering to terminate his employment with appellant company about December 15, 1960.
Shortly after terminating his employment with the Archer Company claimant and his wife purchased a small grocery store at Hatch, which contains their living quarters. The wife runs the store with the assistance of a hired boy on Saturdays and of the claimant who keeps the accounts and does other things involving only light physical activity. In this work, he is able to regulate his time and activity and rest when necessary. The record indicates that claimant and his wife are doing little more than making a living for the family.
Mr. Archer, the employer, testified that while the majority of claimant's activities in his employment involved the physical exertion of lifting, pushing, standing, stooping and bending, after the accident of May 16, 1960, he became aware that claimant was in pain and could not do the same work he had been doing; that he told claimant to take it easy and kept him on to some extent out of special consideration in view of his long period of service with the company. Mr. Archer further testified that in each case he was told about both of the accidents on his return to the office, that he advised the claimant to pursue his claim for compensation and tried to assist him in that regard.
We find no merit in appellants' first contention that the claim for compensation is barred for failure to give notice in writing. Since there is no attack on the lower court's finding as to the timely verbal reporting of both accidents to Mrs. Archer, the office manager, and her referral of claimant to doctors for treatment, it is apparent that appellant's position is that the only knowledge which will relieve from the necessity of written notice is an injury which occurs in the presence of an employer or his agent. In this the appellants are in error. The verbal reporting of an injury by accident arising out of and in the course of employment to the employer, or to his manager, in the circumstances here present, satisfies the requirement of 'actual knowledge.' Buffington v. Continental Casualty Company, 69 N.M. 365, 367 P.2d 539; Winter v. Roberson Construction Company, 70 N.M. 187, 372 P.2d 381, and 2 Larson's Workmen's Compensation Law, Secs. 78.00, 78.31.
The reason for 30-day notice to an employer of an accident or injury sustained by an employee is to enable the employer to examine into the facts while they are accessible and also to employ skilled physicians or surgeons to care for the employee so as to speed his recovery and protect himself against simulated or exaggerated claims. Copeland v. Black, 65 N.M. 214, 334 P.2d 1116. In this case, we have the additional fact of the acknowledgment by the employer of notice of claimant's injuries.
With respect to Point II, appellants challenge the sufficiency of the evidence to support the following finding of fact:
'VI
'(a) From either or both of such accidents of May 16, 1960 and August 18, 1960, sustained while in the course of his employment with the defendant, B. F. Archer, d/b/a Archer Company, Hatch, New Mexico, the claimant, taking into consideration his age, education, training, general physical and mental capacity and adaptability, is unable by reason of such injury or injuries to his back to obtain and retain gainful employment, or has thereby sustained entire loss of his wage earning ability.'
The medical testimony, which was not disputed, can best be set forth by way of the court's finding thereon:
'IV
'(a) According to the medical expert, Dr. Daniel Maddox of Las Cruces, the plaintiff sustained total and permanent disability for manual labor or physical exertion requiring lifting, pushing and handling of equipment incident to his employment as a proximate result of either or both of the injuries or accidents of May 16, 1960 and/or August 18, 1960 and also rendered the opinion that the accident involving the foot on August 18, 1960 could have...
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Webb v. Hamilton
...The reduction in earning capacity has always been the primary concern of workmen's compensation legislation, see Lozano v. Archer, 71 N.M. 175, 376 P.2d 963 (1962), and this fact remains true today. Only the method of measuring it has been changed. Thus when disability, as now measured, doe......
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...agent may possibly satisfy the requirement of this section. Baca v. Swift & Company, 74 N.M. 211, 392 P.2d 407 (1964); Lozano v. Archer, 71 N.M. 175, 376 P.2d 963 (1962). However, the fact that a verbal report has been made is not, in itself, determinative of whether the requirement has bee......
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Baca v. Swift & Co.
...v. Continental Casualty Co., 69 N.M. 365, 367 P.2d 539; Winter v. Roberson Construction Co., 70 N.M. 187, 372 P.2d 381; Lozano v. Archer, 71 N.M. 175, 376 P.2d 963. We are also committed to the doctrine that actual knowledge of the accident or injury means knowledge of a compensable injury ......
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...1959. Ch. 269, Sec. 1, N.M.S.L.1963. Prior to 1959 these terms had not been defined by the legislature. In the case of Lozano v. Archer, 71 N.M. 175, 376 P.2d 963 (1962), being the first case decided under the 1959 law, we noted the change made by that law and the effect of the change, and ......