Strickland v. Coca-Cola Bottling Co.

• Decision Date: 02 June 1988
• Docket Number: No. 10560,COCA-COLA,10560
• Citation: 1988 NMCA 49,760 P.2d 793,107 N.M. 500
• Parties: Andy STRICKLAND, Claimant-Appellant, v.BOTTLING CO., et al., Respondents-Appellees.
• Court: Court of Appeals of New Mexico

Page 793

760 P.2d 793

107 N.M. 500

Andy STRICKLAND, Claimant-Appellant, v. COCA-COLA BOTTLING CO., et al., Respondents-Appellees.

No. 10560.

Court of Appeals of New Mexico.

June 2, 1988.

Certiorari Denied July 19, 1988.

[107 N.M. 501] Bruce P. Moore, Albuquerque, Victor A. Titus, Farmington, for claimant-appellant.

Bob Thorson, Albuquerque, for respondents-appellees.

OPINION

DONNELLY, Chief Judge.

Claimant-worker, Strickland, appeals a final dispositional order of the workers' compensation division denying him compensation and related benefits. The calendar notice proposed summary affirmance and Strickland filed a timely memorandum opposing summary affirmance. We affirm.

Strickland's first issue is whether certain interim provisions of the workers' compensation law enacted in 1986 apply to the present case. See 1986 N.M.Laws, ch. 22, Secs. 4 & 5 (codified as NMSA 1978, Secs. 52-1-24 & -25 (Cum.Supp.1986)). Strickland was injured on May 15, 1986, although he continued to perform the normal duties of his job and did not inform his employer of the accident until June 2, 1986, when he sought medical attention. The calendar notice proposed, and Strickland concedes, that his injury became compensable on June 2, 1986. He was paid his full salary until August 1, 1986, and received compensation benefits until late March 1987 when the employer discontinued payment of these benefits.

1986 N.M.Laws, ch. 22, Section 101, states the provisions of the Workmen's Compensation Act relating to the definitions of total and partial disability "shall apply to injuries and deaths occurring, and occupational diseases manifesting themselves, on or after the effective date of those sections." Id. Because no specific effective date was adopted by the legislature for this provision of the Workmen's Compensation Act, it became effective on May 21, 1986. See N.M. Const., art. IV, Sec. 23.

The hearing officer determined that Sections 52-1-24 and -25 applied to the present case. We agree. We interpret the injuries referred to in Section 101 to mean compensable injuries rather than accidents. In the present case, it is clear that the accident occurred on May 15, 1986. Strickland concedes he did not suffer a compensable injury until June 2, 1986. See Romero v. General Elec. Corp., 104 N.M. 652, 725 P.2d 1220 (Ct.App.1986) (significant date for purposes of determining when the statute of limitations begins to run is the date when a worker knew or should have known he suffered a compensable injury). The supreme court has indicated that the right to compensation is a right that should be measured by the legislative provisions in force at the time the cause of action became effective. Cf. Noffsker v. Barnett & Sons, 72 N.M. 471, 384 P.2d 1022 (1963) (a claimant's right to payment for medical and hospital expenses is a substantive right controlled by the act in force at the time the cause of action accrued). The date the injury occurred is, therefore, after the effective date of the provisions. Hence, the provisions of the 1986 act apply. 1986 N.M.Laws, ch. 22, Sec. 101.

Strickland asserts that, even if the interim provisions apply, he has proven his disability and that the applicable standard of review is whole record review. We assume, but do not decide, that the whole record standard of review is applicable. Under either the whole record or substantial evidence standard of review, we determine that he failed to prove that he was disabled pursuant to the 1986 act.

To receive permanent partial disability under the interim provisions, a worker must prove an anatomic or functional abnormality "as determined by a medically or scientifically demonstrable finding as presented in the American medical association's guides" or comparable publications. NMSA 1978, Sec. 52-1-25 (Cum.Supp.1986). Strickland concedes there was no evidence introduced as to any guidebook or comparable publication. The record indicates that he failed to prove permanent partial disability under the 1986 act.

To receive total disability compensation under the interim provisions, a worker must prove the existence of a "permanent physical impairment * * * resulting by reason of an accidental injury arising out of and in the course of employment whereby a workman is wholly unable to earn comparable wages or salary." NMSA 1978, Sec. 52-1-24 (Cum.Supp.1986) (emphasis added). Strickland points to no evidence regarding comparable wages or salary as required for permanent total disability. In his memorandum in opposition, Strickland asserts he has been unable to find work with the permanent restrictions his doctor has placed on him. The memorandum states there was evidence that his medical restrictions did not prevent Stickland from performing clerical work, but his former employer did not have any openings in that...