Montell v. Orndorff

• Decision Date: 30 June 1960
• Docket Number: No. 6666,6666
• Citation: 353 P.2d 680,67 N.M. 156,1960 NMSC 63
• Court: New Mexico Supreme Court
• Parties: Louis MONTELL, Claimant, Plaintiff-Appellant, v. Howard M. ORNDORFF, d/b/a Duke City Tool & Engineering Company, Employer; and U. S. Fidelity and Guaranty Company, Insurer, Defendants-Appellees.

Page 680

353 P.2d 680

67 N.M. 156

Louis MONTELL, Claimant, Plaintiff-Appellant, v. Howard M. ORNDORFF, d/b/a Duke City Tool & Engineering Company, Employer; and U. S. Fidelity and Guaranty Company, Insurer, Defendants-Appellees.

No. 6666.

Supreme Court of New Mexico.

June 30, 1960.

Rehearing Denied July 29, 1960.

Rueckhaus & Watkins, Albuquerque, for appellant.

Keleher & McLeod, Russell D. Moore, Albuquerque, for appellees.

McGHEE, Chief Justice.

This is an appeal from a summary judgment against a workmen's compensation claimant for failure to give notice to his employer as required by Sec. 59-10-13, N.M.S.A., 1953 Comp., as follows:

'* * * Any workman claiming to be entitled * * * to compensation * * * shall give notice in writing of such accident and of such injury to such employer within thirty (30) days after the occurrence thereof, * * *. provided, that no such written notice shall be requisite where the employer or any superintendent or foreman or other agent in charge of the work in connection with such injury occurred had actual knowledge of the occurrence thereof. * * * In event he shall * * * fail to give such notice within the time required, * * * his claim for such compensation and all right to the recovery of the same * * * shall be and is hereby forever barred.'

As related in claimant's deposition, the facts are these: The claimant is a machinist. On September 28, 1957, while in the course of his employment and while occupied in the process of flamecutting a large piece of steel about five feet square and four inches thick, he shifted the position of the steel on the cutting table. While thus moving the steel, claimant's foot slipped and he felt a burning sensation down low on his right side which lasted just for a moment after which claimant became sick at his atomach. He continued to work for about an hour and began to feel more sick at his stomach. He then told the work foreman that he felt bad and wanted to go home, which he did. The next working day was a Monday and when claimant returned to work he was discharged from his job.

On October 31, 1957, the claimant was given a physical examination in connection with his application for other employment. The examining doctor informed claimant that he had a hernia. On November 5, 1957, claimant underwent surgery for repair of a hernia on his lower right abdomen. On November 20, 1957, the operating surgeon told the claimant he would not be able to lift over fifty pounds the rest of his life and that the hernia had been caused by lifting something heavy. When the doctor made this statement, the claimant, for the first time, connected his injury with his exertions on September 28, 1957, in moving the steel plate, which incident represented the only time the claimant had done any kind of physical work to amount to anything, and the only time he had experienced pain. He had no hernia or symptoms of hernia before that date and he had had physical examinations in March of 1957, and also in 1953 and 1952. From the time claimant sustained his injury until he was informed he had a hernia, the claimant thought he was suffering from Asiatic flu, which was then prevalent in Albuquerque where the claimant lived.

On December 19, 1957, the claimant's attorney sent a written notice of accident and injury to the employer, which was received the following day.

On this appeal the claimant contends that this notice was sufficient under the statute under the principle of Elsea v. Broome Furniture Company, 1943, 47 N.M. 356, 143 P.2d 572, where it was held the employee's failure to give notice of a result flowing from his injury was excused where the employee had no knowledge of the true seriousness of his injury and expert medical attention was necessary to establish the causal connection between the injury and the result.

The employer relies upon our decision in Copeland v. Black, 1959, 65 N.M. 214, 334 P.2d 1116, which arose out of a situation very like that before us now and where we held the notice to be insufficient. That case emphasized the importance of timely notice to the employer in order that he may examine the facts of an accident while they are still accessible and provide medical treatment for the employee.

These considerations are very important, but they are to be given effect within the framework of legislation having as its object the provision of care and compensation for workmen who are injured by accident in the course of their employment. The Workmen's Compensation Act is remedial legislation and should be liberally construed to effect its purposes. Gonzales v. Chino Copper Co., 1924, 29 N.M. 228, 222 P. 903. Under the construction urged by the employer, as to a workman who does not know he has sustained a compensable injury, or who is not chargeable with that knowledge, the effect of the statute would be to require the impossible. We cannot attribute this result to legislative intent.

The status of American decisions on the issue raised here is well stated in 2 Larson's Workmen's Compensation Law, at page 251, as follows:

'Under most acts, the employee must give his employer notice of injury as soon as practicable, or within a specified number of months, and must also file his claim for compensation with the administrative agency within a fixed period, usually one to two years. Since the purpose of the notice requirement is to enable the employer to protect himself by prompt investigation and treatment of the injury, failure to give formal notice is usually no bar if the employer had actual knowledge or informal notice sufficient to indicate the possibility of a compensable injury, or if the employer furnished medical service or paid some compensation, or, in many jurisdictions, if the employer was not prejudiced by the lack of notice. Moreover, since the law does not exact the impossible of the employee, lateness of both notice and claim may be excused for various reasons, including the following: impossibility of knowing that an apparently minor accident would later develop into a compensable injury; reasonable inability to recognize a disease or disabling condition in an early or latent stage; medical opinion that the injury is not serious or is nonindustrial; voluntary payment of benefits by the employer, or assurances that the employee will be taken care of, inducing the employere to refrain from making claim; and disability preventing the making of the claim, due to mental or physical incapacity, minority, and the like. Some statutes, however, by making the claim period run from the date of 'accident', have produced holdings that an injury which manifests itself for the first time after the period has expired is nevertheless barred. The right to assert the statutory bar can, in most jurisdictions, be lost by waiver, through the payment of compensation, the failure to raise the defense promptly, or the admission of liability.'

Further, at Vol. 2 Larson's Workmen's Compensation Law, p. 260, it is said:

'Except under statutes expressly dating the limitations period from the 'accident', the time for notice or claim does not begin to run until the claimant, as a reasonable man, should recognize the nature, seriousness and probable compensable character of his injury or disease.'

In the note following, No. 25, cases are collected from the numerous jurisdictions in support of the statement. The case of Minardi v. Pacific Airmotive Corp., 1957, 43 N.J.Super. 460, 129 A.2d 51, 55, is very like the case before us. The court rejected a claim that notice must be given within forty-eight hours after the occurrence of hernia, saying that it could hardly have been the legislative intent that the employee give notice of 'every slight accident, scratch, pinprick, or blow suffering in his work.' We quote from that opinion:

'A reasonable construction of N.J.S.A. 34:15-12(x) is that where there is a traumatic hernia, compensation will be allowed if notice thereof is given by the claimant to the employer within 48 hours after the hernia became manifest; that is, within 48 hours of the time that--by the exercise of reasonable care and diligence--it is discoverable and apparent that a compensable injury has been sustained. In the case sub judice, the hernia became manifest, discoverable and apparent on May 28, 1954, when petition received a medical examination when he applied for a position with American Airlines. This was 21 days after the incident of May 7, 1954.

'The reasons for said rule of construction are obvious: It relieves the employee of an unreasonable burden. It relieves the employer of the burden of investigating every case of slight injury until all possibility of resulting incapacity shall have passed. Furthermore, the Workmen's Compensation Act does not contemplate the payment of damages for accident injuries, no matter how painful. It is only the disability or loss of earning power which results from the injuries that calls for compensation. So when the act speaks of the occurrence of injury or the occurrence of the hernia, it refers to compensable injuries and these occur when disability appears--in other words, when the injury or hernia becomes manifest. See Clausen v. Minnesota Steel Co., supra, 186 Minn. 80, 242 N.W. 397.'

In Clausen v. Minnesota Steel Co., 1932, 186 Minn. 80, 242 N.W. 397, 398, the Court said:

'* * * It is common knowledge that accidents may injure some parts of the physical structure of the body not open to view nor suspected of having received an injury, nor causing disability until long after the accident. The injury is there, but latent and hidden. There are accidents so trivial in apparent results at the time that neither the one who might witness the same nor the victim thereof would anticpate disability therefrom; yet the subsequent development thereof may cause, not only loss of members, but life itself. Examples of such appear in the decisions of this court. Walker v. Minnesota Steel Co....