BOWERS V. WAYNE LOVELADY DODGE, INC., 1969-NMCA-065,
80 N.M. 475, 457 P.2d 994 (Ct. App. 1969)
BERNARD A. BOWERS, Plaintiff-Appellant,
vs.
WAYNE LOVELADY DODGE, INC., Defendant-Appellee
COURT OF APPEALS OF NEW MEXICO
1969-NMCA-065, 80 N.M. 475, 457 P.2d 994
APPEAL FROM THE DISTRICT COURT OF
BERNALILLO COUNTY, REIDY, Judge
JOHN J. DUHIGG, SHEEHAN, DUHIGG AND
CRONIN, Albuquerque, New Mexico, Attorney for Plaintiff-Appellant.
JAMES A. PARKER, MODRALL, SEYMOUR, SPERLING,
ROEHL & HARRIS, Albuquerque, New Mexico, Attorney for Defendant-Appellee.
HENDLEY, Judge, wrote the opinion.
Waldo Spiess, C.J., Joe W. Wood, J.
{1} Plaintiff contends the
trial court erred in granting defendant's Motion for Summary Judgment on the
ground that the statute of limitations had run on plaintiff's claim for
compensation benefits. We disagree.
{2} Plaintiff received a head
injury on January 22, 1966, while in the course of his employment. With the
exception of a few days in the hospital plaintiff continued to work until the
date of his discharge on December 5, 1967. The workmen's compensation claim was
filed on January 12, 1968.
{3} The limitations statute
in force at the time of plaintiff's accident on January 22, 1966, was N.M. Laws
1963, Ch. 269, § 6, which reads in part:
"A. If an employer or his insurer fails or refuses to
pay a workman any installment of compensation to which the workman is entitled
under the Workmen's Compensation Act, after notice has been given as required
by Section 59-10-13.4 New Mexico Statutes Annotated, 1953 Compilation, it is
the duty of the workman, insisting on the payment of compensation, to file a
claim therefor as provided in the Workmen's Compensation Act, not later than
one year after the failure or refusal of the employer or insurer to pay
compensation. This one-year period of limitations shall not be tolled during
the time a workman is employed by the employed [sic] by whom he was employed at
the time of such accidental injury."
Under this statute plaintiff was required to file his claim
within one year after the failure or refusal to pay compensation.
{4} There can be no failure
or refusal to pay compensation unless the workman is entitled to receive
compensation. Noland v. Young Drilling Co.,
79 N.M. 444,
444 P.2d 771 (Ct. App.
1968); see Garcia v. New Mexico State Highway Department,
61 N.M. 156,
296 P.2d
759 (1956). Compensation is payable for disability. Sections 59-10-18.2 and
59-10-18.3, N.M.S.A. 1953 (Supp. 1967); see McCleskey v. N. C. Ribble Company,
80 N.M. 345,
455 P.2d 849, Ct. App., decided April 25, 1969.
{5} Plaintiff claims he did
not suffer a disability until the eighth day after his discharge, see §
59-10-18.1, N.M.S.A. 1953, and that the limitation period did not begin to run
until that time. He relies on the fact that he did not lose as many as seven
consecutive days of work at any time between his accident and discharge.
{6} The applicable limitation
statute, quoted above, does not provide that a workman lose seven consecutive
days of work before the limitation period begins to run. Noland v. Young
Drilling, Co., supra, states:
"* * * As soon as it becomes reasonably apparent, or
should become reasonably apparent to a workman that he has an injury on account
of which he is entitled to compensation and the employer fails or refuses to
make payment he has a right to file a claim and the statute begins to run from
that date. * * *"
{7} The undisputed facts show
that it should have been reasonably apparent to plaintiff that he had an injury
on account of which he was entitled to compensation more than one year and
thirty-one days before the complaint was filed. See § 59-10-13.5, N.M.S.A.
1953; Moody v. Hastings,
72 N.M. 132,
381 P.2d 207 (1963).
{8} The undisputed facts are:
While employed at his usual task of body and fender work, plaintiff suffered
two blows to his head on January 22, 1966. His head hurt for the remainder of
the day and he didn't do much work the rest of the day. That night he had a
convulsion, for which he was hospitalized for four days. He returned to
{*477} work, but was on medication and
continued to see the doctor. At times at work he was unable to stand by
himself. At other times, while at work, he laid down and went to sleep. He had
recurrent headaches, mostly localized in the area of one of the blows and had
additional hospitalization. He suffered from loss of memory, had an additional
convulsion and some episodes of abnormal behavior. Prior to the accident he
performed his work without a helper; after the accident he was assigned a
helper and "guessed" that the helper was for the purpose of
lightening the load upon him. When he got out of high school in 1935 he drove a
truck for a week or two. Since then he has done only body and fender work. See
definition on partial disability in § 59-10-12.19, N.M.S.A. 1953 (Supp. 1967).
{9} The limitation period had
run when plaintiff filed his claim.
{10} The judgment of the
trial court is affirmed.
Waldo Spiess, C.J., Joe W. Wood, J.