De La Torre v. Kennecott Copper Corporation , 89 N.M. 683 ( 1976 )

PER CURIAM.

Upon motion of defendant for rehearing, the opinion is withdrawn and the following opinion substituted therefor:

OPINION

SUTIN, Judge

Plaintiff appeals from an order that dismissed plaintiff’s complaint which sought recovery of workmen’s compensation. We reverse.

A. Plaintiff is entitled to workmen’s compensation.

Plaintiff’s complaint stated a claim for relief under the Workmen’s Compensation Act. It alleged that plaintiff was seriously injured on March 24, 1967; that he was disabled until March 23, 1968, when he resumed his full-time employment with defendant; that on May 16, 1974, six years later, plaintiff was again rendered totally disabled and as a result thereof, plaintiff was entitled to compensation benefits. Plaintiff’s complaint was filed on January 23,1976.

As an affirmative defense, the defendant claimed that plaintiff’s claim was barred by the limitation provisions of § 59-10-13.6(A) of the Workmen’s Compensation Act [N.M.S.A.1953 (2d Repl.Vol. 9, pt. 1)]. To raise this issue before trial, defendant filed a motion to dismiss on the basis of the limitation provison. The motion stated that the complaint, filed January 23, 1976, was more than one year after the alleged job accident of May 16, 1974.

At the hearing on the motion, the defendant stated:

As of May 16, 1974, the date referred to in paragraph 5 of plaintiff’s complaint, the plaintiff ceased actual work with the employer and went on sick leave lay-off status. He remained an employee to the extent that when his illness was terminated and he was well enough to return to work, he would be returned to his regular employment. During the time of this illness, plaintiff received weekly benefits under the weekly indemnity plan which were not in any way related to any workmen’s compensation payments.

Up to the date of the retirement [April 1, 1975], he was technically carried in the company records as an employee, but was not at any time subsequent to May 16, 1974, actually performing his duties as an employee or receiving wages as such.

In view of this, it is our opinion that he was — did not remain employed as contemplated by the second sentence in paragraph (a) of Section 13.6. ******

MR. SHANTZ: Am I correct also that the termination of employee status to the retirement status is that date in April, ’75 . . . ?

THE.COURT: Yes. That is the understanding the Court received from the agreement of counsel and the explanation given. [Emphasis added].

Plaintiff offered in evidence a letter from defendant to plaintiff which fixed the date of retirement as of April 1, 1975.

Based on defendant’s statements and plaintiff’s letter, the trial court concluded that the limitation provision in § 59-10-13.-6(A) barred the recovery of workmen’s compensation. The foregoing constitutes the record in the court below.

Section 59-10-13.6, N.M.S.A.1953 (2d Repl.Vol. 9, pt. 1) provides a one year limitation period for filing a claim for workmen’s compensation “after the failure or refusal of the employer or insurer to pay compensation. This one [1] year period of limitations shall be tolled during the time a workman remains employed by the employer by whom he was employed at the time of such accidental injury, not to exceed a period of one [1] year.”

The issue to decide is whether plaintiff remained “employed” by defendant from May 16, 1974 to April 1, 1975, the date of plaintiff’s retirement. If he did remain “employed”, then the complaint filed January 23, 1976 was not barred by the limitation statute. This is a matter of first impression in New Mexico.

First, plaintiff claims he was totally disabled on May 16, 1974. Defendant claims “plaintiff ceased actual work with the employer and went on sick leave lay-off status.” The answer to these claims is a question of fact for the trial court.

Second, plaintiff “remained an employee to the extent that when his illness was terminated and he was well enough to return to work, he would be returned to his regular employment. . . . Up to the date of retirement, he was technically carried in the company records as an employee .... [T]he termination of employee status ... is that date in April, ’75”. During this interim period, May 16, 1974 — April 1, 1975, plaintiff received weekly benefits under the weekly benefit plan. These benefits are payable, to one who is employed, for disabilities resulting from sickness or off-the-job injuries.

In its letter to plaintiff dated April 22, 1975, the defendant stated:

Enclosed is your certificate of retirement which recognizes your 28 years of continuous service at Chino Mines Division.

On behalf of the company, I wish to express my appreciation for the many years you worked in various positions at the mine. You are especially to be commended for your performance as a heavy duty truck mechanic in the maintenance department for more than 20 years prior to your retirement on April 1, 1975. [Emphasis added].

The facts stated established that plaintiff remained in employment until April 1, 1975 as a matter of law. If the defendant led plaintiff to believe that he was considered in “employment” for workmen’s compensation, or if it became reasonably apparent to plaintiff that he was considered in “employment” and was entitled to compensation, the statute was tolled. See § 59-10-14, N.M.S.A.1953 (2d Repl.Vol. 9, pt. 1); Lasater v. Home Oil Company, 83 N.M. 567, 494 P.2d 980 (Ct.App.1972); Reed v. Fish Engineering Corporation, 76 N.M. 760, 418 P.2d 537 (1966).

Plaintiff remained “employed by the employer” in the spirit of the Workmen’s Compensation Act. To deny plaintiff his day in court because he was not, in fact, doing actual work after May 16, 1974, and he did not receive wages, violates that spirit. We should not blanch plaintiff’s employment status after “28 years of continuous service at Chino Mines Division.”

We hold that the one year period of limitation was tolled, and the complaint was filed in time.

B. The 1963 statute was not in effect.

Whether the 1963 statute, which did not toll the limitation period, was in effect, was not an issue raised in the trial court or on appeal to this Court. Both parties agreed that the 1967 statute, supra, was in effect. We commend the defendant for stating in its brief:

Surely the very purpose of the 1967 amendment was . . . to do away with the harsh provisions of the 1963 amendment. Under the 1963 amendment unscrupulous employers could possibly avoid payment of a total permanent disability award by keeping a badly injured workman on the payroll at some make-work job and pay his normal wages for a year, and then discharge the man when the statute had run and he could no longer bring his action.

Although this issue was waived by defendant, we find it necessary to answer the dissenting opinion.

An accident occurred on March 24, 1967, when the 1963 amendment statute was in effect. A year later, on March 3, 1968, plaintiff returned to full employment for six years. During this interim period, workmen’s compensation was paid. On May 16, 1974, plaintiff again suffered an alleged job accident and was totally disabled or went “on sick leave lay-off status.” We do know that the accident of March 24, 1967 terminated on March 3, 1968 when workmen’s compensation payments ended and plaintiff returned to full employment for six years. On May 16, 1974, the 1967 statute was in effect. The 1967 statute applies because the date of disability is critical and the law effective at that time controls. In Gomez v. Hausman Corporation, 83 N.M. 400, 401, 492 P.2d 1263, 1264 (Ct.App.1972), we said:

The period of limitation does not commence to run until it becomes reasonably apparent, or should become reasonably apparent, to the workman that he has an injury for which he is entitled to compensation.

Time does not begin to run until the disability is discovered rather than from the accidental occurrence. The 1974 claim for compensation does not relate back seven years to 1967, the date of the first accident. This we should not do. The whole philosophy upon which workmen’s compensation is based, as the public policy of this State, militates against such a contention. Gonzales v. Chino Copper Co., 29 N.M. 228, 222 P. 903 (1924); Christensen v. Dysart, 42 N.M. 107, 76 P. 2d 1 (1938).

We hold that the 1963 statute was not in effect.

Reversed.

IT IS SO ORDERED.

HERNANDEZ, J., concurs. LOPEZ, J., dissenting in part and concurring in part.