Anderson v. Contract Trucking , 48 N.M. 158 ( 1944 )

I concur, but inasmuch as appellants earnestly contend the giving of notice of the accident and of the injury is a condition precedent to the right of recovery and assert that we have held, insofar as the limitation of time within which claim for compensation must be filed is concerned, the injury must have been considered as contemporaneous in point of time with the occurrence of the accident from which the injury is sutained, I think something further should be said.

Appellants are mistaken in their appraisal of our decisions.

The word "injury" is a term of broad signification and as applied to the human body may mean only some violence to or change in the physical structure, or in some part of the system.

It is understood in common speech to have this meaning (although not exclusively so) and so understood may refer to non-compensable injuries for workmen's compensation purposes.

As injuries are frequently evidenced by outward manifestations, I think for the purpose of the notice part of the Act, which makes knowledge of the employers an equivalent of notice, the "injury" of which notice must be given may be either non-compensable or compensable, it being a chief purpose of notice to reasonably inform the employer so that he may have an opportunity to examine into the alleged accident and injury while the facts are accessible and also to employ skilled physicians or surgeons to care for the employee so as to speed his recovery and minimize the loss. Henderson v. Consumers Power Co., 301 Mich. 564, 4 N.W.2d 10.

The distinction between non-compensable and compensable accidental injuries in the administration of Workmen's Compensation Acts is noticed in Henderson v. Consumers Power Co., supra. Also it is noted that in Sec. 57-926, New Mexico Stats. 1941, it is made the duty of employers to report all accidents occurring in employments under the Act to the insurance department of the State Corporation Commission, whereas Sec. 57-927 requires the employer to report "compensable accidentalinjuries" to the Labor Commissioner; and Sec. 57-928 provides:

"No claim for compensation * * * shall be barred prior to the filing of such report or within thirty (30) days thereafter."

This seems to support the view that the limitations of actions bar applies to only compensable accidental injuries and that forcompensation purposes, and for limitation of action purposes, the word "injuries" refers to compensable injuries only.

The limitation period begins with the date the employer shall fail or refuse to pay the compensation provided for in the act.

Failure or refusal to pay compensation for non-compensable injuries would surely be an anomalous definition of the word.

Doubtless one of the purposes of notice in cases of compensable injury is to give the employer an opportunity to pay, without the added burden of court costs. It would seem absurd to fix the time the limitation period begins to run as of the date of the failure or refusal of the employer to pay something not required by the statute to be paid.

Since the court seems to have found in connection with notice that the defendant employer had actual knowledge of the accident and the injury, I understand the word "injury" to have been used by the court in the sense of non-compensable injury.

Appellants have cited in support of their contention decisions of this court in Caton v. Gilliland Oil Co., 33 N.M. 227,264 P. 946; Mumford v. State Highway Commission, 35 N.M. 404,1 P.2d 115; Taylor v. American Employers' Ins. Co. of Boston, Mass.,35 N.M. 544, 3 P.2d 76; Edinburg v. Southwestern Public Service Co.,37 N.M. 139, 19 P.2d 747; Bearup v. Peru Mining Co., 38 N.M. 531,37 P.2d 535; Ogletree v. Jones, 44 N.M. 567, 106 P.2d 302; Samora v. Town of Las Cruces, 45 N.M. 75, 109 P.2d 790.

The reported opinions in these cases did not set out fully the nature of the injuries or make reference to the time when the injuries became manifestly compensable, since the precise point involved in the case at bar was not involved in those cases. I have presently examined the record in those cases and it may be safely said that in all of them the facts were sufficient to indicate compensable injury at or near the date of the accident of which the employer either had notice or knowledge sufficient to invoke payment of compensation and thus start the running of the limitation period.

A notable illustration is the Mumford case, supra, in which it was apparent from the time of the accident that the injury was compensable. The claim alleged: "Such injury has caused the complete loss of the sight of the left eye caused by the splashing of hot creosote, * * *".

The answer of the insurer stated: "* * * admits the allegations in said claim", but denied liability for the reason, "that said employer had actual knowledge of said injury within two weeks after the occurrence thereof and no compensation nor any part thereof was paid by said employer or this defendant within thirty-one days after the date of the said accident and injury."

Thus, the defendant in that case, with keen discrimination, fixed the time of the failure or refusal to pay as the starting point of the limitation period for the purpose of its plea that the claim was barred.

In the case at bar the situation is quite different. The defendants here state that the claim is barred because not filed within one year after the occurrence of the accident and injury or after the refusal or failure of the employer to pay the same. Yet they create no situation by the evidence to show they had knowledge of a compensable injury from which a refusal or failure to pay could be inferred. In fact, the only evidence on the subject shows that the defendants disclaim having knowledge of a compensable injury, although the employer knew of the accident and of the injury, in the sense of physical harm and disturbance of the eye. But they regarded the injury as a trivial one and hence non-compensable.