Montell v. Orndorff , 67 N.M. 156 ( 1960 )

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 § 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 stomach. 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 employee 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 suffered 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 manifset; 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 petitioner 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 accidental 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 anticipate disability therefrom; yet the subsequent development thereof may cause, not only loss of members, but 67 N.M. — 11 life itself. Examples of such appear in the decisions of this court. Walker v. Minnesota Steel Co., 167 Minn. 475, 209 N.W. 635; Hertz v. Watab Paper Co., 180 Minn. 177, 230 N.W. 481; Keane v. Arrowhead Steel Products Co., 181 Minn. 359, 232 N.W. 621. The Workmen’s Compensation Act does not contemplate the payment of damages for accidental 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 it refers to compensable injuries, and these occur when disability appears. * * * ”

See also Panchak v. Simmons Co., 1954, 15 N.J. 13, 103 A.2d 884. Buzza v. General Motors Corp., 1958, 49 N.J.Super. 322, 139 A.2d 790, contains indications of a contrary ruling but that case is distinguishable on its facts from the Minardi and Panchak cases since the workman was chargeable with notice he had sustained a compensable injury.

The principles we have heretofore announced concerning the timeliness of claims for latent injuries apply with equal reason and force in considering the timliness of notice of accident and injury. The period limited for this notice begins to run from the time the workman knows, or should know by the exercise of reasonable diligence, that he has sustained injury by accident in the course of his employment. Letteau v. Reynolds Electrical Co., 1955, 60 N.M. 234, 290 P.2d 1072; Harlow v. Hare, 1947, 51 N.M. 326, 184 P.2d 300; Anderson v. Contract Trucking Co., 1944, 48 N.M. 158, 146 P.2d 873; Elsea v. Broome Furniture Co., 1943, 47 N.M. 356, 143 P.2d 572.

• If there is any conflict between the ruling here announced and the cases of Copeland v. Black, 1959, 65 N.M. 214, 334 P.2d 1116, and Yardman v. Cooper, 1959, 65 N.M. 450, 339 P.2d 473, they are overruled to the extent of the conflict.

In our consideration of this case argument has been made that certain language in § 59-10-13, N.M.S.A., 1953 Comp., distinguishes our notice requirement from those of other states which have been construed to allow dating of the time for notice from the time the injury becomes apparent, rather than from the time of the occurrence of the accident. To show the line of argument, we quote again from our statute:

“The compensation herein provided shall be paid by the employer to any injured workman entitled thereto in semi-monthly instalments as nearly equal as possible excepting the first instalment which shall be paid not later than thirty-one (31) days after the date of such injury. Any workman claiming to be entitled under this act (sections 57-901 — 57-931 [59-10-1 to 59-10-31]) to compensation from any employer on account of injury suffered by accident arising out of and in the course of his employment shall give notice in writing of such accident and of such injury to such employer within thirty (30) days after the occurrence thereof, unless prevented by such injury or other causes beyond his control, and, if so prevented, as soon as the same may be reasonably done, and at all events not later than sixty (60) days after such accident; * * * " (Emphasis supplied).

On the basis of the italicized portion of this section it has been asserted in argument that while a workman suffering a latent injury is excused from filing notice of “such accident and of such injury” within the thirty-day period, that under no circumstances can the notice of accident and injury be given later than sixty days “after such accident.”

If the foregoing language contained all that the statute had tO' say on the matter, this might be a permissible construction, but. there is more. Immediately after the material quoted above, the statute continues :

“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. Except in the case of such workman being prevented from giving notice by his injuries and in case zvhere no notice is required no workman failing to give such notice within said thirty (30) days after such injuries occurred shall be allozved to recover any compensation on account of such injury under any circumstances whatever for the period he shall remain in default in giving such notice. * * *” (Emphasis supplied).

Two things are notable about this portion of the statute. First, the giving of notice is related to the occurrence of the injuries, not the occurrence of the accident. Second, a workman who inexcusably delays the giving of notice beyond the thirty day period is docked his compensation for the period of his default. In view of the further language of the statute:

“In event he (the workman) shall either fail to give such notice within the time required, or fail to file such claim within the time hereinafter required, his claim for such compensation and all right to the recovery of the same and the bringing of any legal proceeding for the recovery thereof shall be and is hereby forever barred. * * * 9f

the denial of compensation for the period the workman remains in default in giving notice must relate to the interval between the thirty and the sixty-day period, and it must relate to workmen who are chargeable with notice of compensable injury. In effect, then, a workman who is fully cognizant of his accident and the extent of his injuries can delay filing his claim within the thirty-day period, provided he gets it in within sixty days, but he does so at the cost of compensation loss for the period of his default. We do not think it can reasonably be argued that the legislature intended the sixty-day period as an absolute shut-off date for notice of accident and latent injury, since the statute contains something resembling a thirty-day grace period for cases of patent injury.

Finally, we take notice of fears expressed as to the danger of fraudulent claims in hernia cases. Our attention has been directed to Martin v. White Pine Lumber Co., 34 N.M. 483, 284 P. 115, 116, where we said with reference to the hernia provisions of § 59-10-18, N.M.S.A., 1953 Comp.:

“Counsel seem to agree that the special provisions concerning hernia were included in the statute because of special difficulties in dealing with that ailment and because, from its nature, it offered an easy means of imposition and fraud.”

Suffice it to say that it has always been the business of the courts to guard against the making and allowance of fraudulent claims and we are confident they will continue to do so.

The case is reversed and remanded for trial wherein the factual issue of timeliness of notice shall be determined by the fact finder in accordance herewith.

It Is So Ordered.

COMPTON and CHAVEZ, JJ„ concur.