Norris v. Amax Chemical Corp.
| Citation | 506 P.2d 93,1973 NMCA 10,84 N.M. 587 |
| Decision Date | 19 January 1973 |
| Docket Number | No. 981,981 |
| Parties | Clifford NORRIS, Plaintiff-Appellant, v. AMAX CHEMICAL CORPORATION, Employer and Self-Insurer, Defendant-Appellee. |
| Court | Court of Appeals of New Mexico |
Dick A. Blenden, Michael F. McCormick, Carlsbad, for plaintiff-appellant.
C. A. Feezer, Dow & Feezer, Carlsbad, for defendant-appellee.
The propriety of the summary judgment in favor of defendant in this workmen's compensation case involves the question of 'actual knowledge' of a compensable injury.
On November 25, 1970, while at work, plaintiff was struck across the left eye by a cable. He was taken to a doctor, treated for cuts (two stitches were taken) and returned to work the next day.
Defendant's motion for summary judgment was supported by the affidavit of defendant's safety engineer. The affidavit states that the treating physician reported 'no disability' and the accident report was closed. The affidavit states: '* * * nothing further by way of 'notice' of any compensable injury * * * was received * * *' until defendant received two medical bills for treatment of plaintiff's eye in November, 1971.
Plaintiff contends his deposition testimony raises an issue of fact as to defendant's knowledge of a compensable injury. He relies on testimony that he spoke about his eye trouble, and of not being able to see, to several persons associated with the company.
Assuming the persons to whom plaintiff spoke were superintendents, foremen or agents in charge of the work, see § 59--10--13.4(B), N.M.S.A.1953 (Repl.Vol. 9, pt. 1), these conversations do not raise a factual issue as to actual knowledge of a compensable injury.
Section 59--10--13.4(A), N.M.S.A.1953 (Repl.Vol. 9, pt. 1) provides that written notice is to be given of the accident and injury. Written notice is excused if there is actual knowledge, but the actual knowledge which excuses written notice must have been acquired within the time allotted for the written notice. Rohrer v. Eidal International, 79 N.M. 711, 449 P.2d 81 (Ct.App.1968).
In this case, defendant made a prima facie showing that no actual knowledge of a compensable injury was acquired within the time provided for written notice. See § 59--10--13.4(A), supra. With this showing, plaintiff had the burden of showing that a factual issue existed as to the time when actual knowledge of a compensable injury was acquired by defendant. Goodman v. Brock, 83 N.M. 789, 498 P.2d 676 (1972). One conversation referred to by plaintiff in his deposition affirmatively shows that conversation occurred long after expiration of the time for giving written notice. Plaintiff's deposition does not indicate when the other conversations occurred. Nor can the time of these other conversations be inferred.
In this posture, plaintiff failed to show that a genuine factual issue existed as to when defendant acquired actual knowledge of a compensable injury. Under Goodman v....
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...foreman, or other agent in charge of the work in connection with which the accident occurred. Norris v. Amax Chemical Corporation (Ct.App.), 84 N.M. 587, 506 P.2d 93 decided January 19, 1973. This doctrine is stated affirmatively and without exception. The same rule applies under the Occupa......