Gambrel v. Marriott Hotel

818 P.2d 869, 112 N.M. 668

• Court: New Mexico Court of Appeals
• Decided: August 15, 1991
• Docket: 12619
• Status: Published

Opinions

OPINION

CHAVEZ, Judge.

Marriott Hotel and its insurance company (hereinafter collectively referred to as “employer”) appeals from that portion of the workers’ compensation judge’s (WCJ) compensation order awarding death benefits to worker’s widow. Employer raises a single issue on appeal: whether the two-year time limit for bringing claims for death benefits under NMSA 1978, Section 52-1-46 (Cum.Supp.1986) (Interim Act), begins to accrue from the date of the accident or from the date the worker knew or should have known of a compensable injury. State of New Mexico Superintendent of Insurance and the Subsequent Injury Fund (Fund) also appeals, arguing (1) employer failed to substantially comply with the Subsequent Injury Act (SIA); (2) the apportioned liability between the employer and the Fund is not supported by substantial evidence; and (3) the purpose and policy of SIA is violated by assessing liability against the Fund in this case. We deny employer’s motion to strike worker’s answer brief as nonresponsive. For reasons stated below, we affirm the award of death benefits but reverse the compensation order insofar as it holds the Fund liable. We also grant widow’s request for attorney’s fees for this appeal.

FACTS

On March 5, 1987, while working as a carpenter, worker was assigned the task of stripping chairs in a small, unventilated room. At this time, employer was aware that worker suffered from a preexisting physical impairment to his lungs due to chronic obstructive pulmonary disease. Worker subsequently filed a workers' compensation claim against employer, and was awarded permanent total disability benefits in a March 23, 1988, compensation order. This compensation order also found (1) that exposure to the stripping chemicals was the direct and proximate cause of his disability and (2) that worker knew or should have known that he suffered a compensable injury on August 17, 1987. We affirmed the order by memorandum opinion. (Ct.App. No. 10, 599, filed April 18, 1989). Worker died on April 30, 1989, of acute pulmonary embolus with pulmonary infarction.

Widow filed a claim for death benefits on December 1,1989. Employer had previously filed a third-party complaint against the Fund and had filed a certificate of preexisting physical impairment on October 10,

1989. The certificate was not signed, however, by either worker or widow. A compensation order was entered on August 13, 1990, awarding death benefits to worker’s widow and apportioning liability equally between employer and the Fund.

DISCUSSION

I. Employer’s Appeal

Employer claims that, as a matter of law, widow is not entitled to the award of death benefits and funeral expenses under Section 52-1-46 because of the time bar contained therein. The question presented for review is whether the two-year period within which the claim must be brought begins to run from the date of the accidental injury rather than the date worker knew or should have known he had a compensable injury.

Section 52-1-46 states, in relevant part: Subject to the limitation of compensation payable under Subsection G of this section, if an accidental injury sustained by a workman proximately results in his death within the period of two years following his accidental injury, compensation shall be paid in the amount and to the persons entitled thereto, as follows

We begin by noting that the proper construction of this statutory provision requires that we determine legislative intent. See Security Escrow Corp. v. State Taxation and Revenue Dep’t, 107 N.M. 540, 760 P.2d 1306 (Ct.App.1988) (central concern of reviewing court is to determine legislative intent). Legislative intent is primarily ascertained by reference to the plain language set forth in the statute. See General Motors v. Anaya, 103 N.M. 72, 703 P.2d 169 (1985) (plain language of statute is primary means of ascertaining legislative intent). The common referent is the “plain meaning” rule of statutory construction. However, it should be noted that the “plain meaning” rule is but a guideline to assist the court in correctly ascertaining the intent of the legislature. See Quintana v. New Mexico Dep’t of Corrections, 100 N.M. 224, 668 P.2d 1101 (1983) (purpose of rules of statutory construction is to derive legislative intent); see also Martinez v. Research Park, Inc., 75 N.M. 672, 410 P.2d 200 (1965) (intention of legislature prevails over mechanistic reading of literal language).

What then is the intent of the legislature? We have repeatedly said that the purpose of the Act is to provide a form of recovery for a worker and his dependent heirs, and to ensure prompt compensation to worker and his dependents. See Livingston v. Loffland Bros., 86 N.M. 375, 378, 524 P.2d 991, 994 (Ct.App.1974); see also Aranda v. Mississippi Chemical Corp., 93 N.M. 412, 416, 600 P.2d 1202, 1204 (Ct.App.1979) (public policy demands, and primary purpose of statute confirms, at minimum, that worker and family have threshold amount of financial security); see also Larson, Workmen’s Compensation (Desk Ed.) § 1.1 (in death cases, benefits to dependents provided), § 2.40 (injuries affecting earning power compensated), § 2.50 (purpose of benefits to avoid dependence on others), § 2.60 (if worker dies without dependents no award made because no threat of destitution on behalf of dependents). While additional policy may be adduced in order to guide the court in particular cases, we believe the broad policy contours underlying the Act are identical whether worker is disabled or dies as a result of the accidental injury. But see Desselle v. Liberty Mutual Ins. Comp, 482 So.2d 1009 (La.App. 3 Cir.1986) (in workers’ compensation cases, “Conflicting claims of morality and intelligence are raised by opponents and proponents of almost every measure

We are mindful that death benefits constitute a separate cause of action, not derivative of the action worker could have maintained for compensation had he survived. See A. Larson, 2A The Law of Workmens’ Compensation, § 64.10-11. However, as the above cases demonstrate, it is the strong public policy underlying the Act that the protection of dependents is equal in measure to the protection of worker’s interests. Employer contends that “accidental injury”, as appearing is Section 52-1-46 refers solely to the date of the accident which caused the injury. Employer’s position is that the use of the term, “accidental injury”, in the controlling section requires this court find a fixed date, upon which “the accident” from which the injury arose, occurred. This date then sets the two year period running and a simple time line controls. We disagree.

We first approach this matter by analyzing the cases wherein the component words of the term in issue have been construed. Our cases consistently hold that an “injury” need not arise immediately, momentarily, or obviously at the time of the “accident” to be compensable under our Act. See Candelaria v. Gen. Elec. Co., 105 N.M. 167, 172, 730 P.2d 470 (Ct.App.1985) (injury may be produced gradually and progressively); Cisneros v. Molycorp. Inc., 107 N.M. 788, 765 P.2d 761 (Ct.App.1988). This is not to say that time, place and cause of injury need not be established by the claimant. See Herndon v. Albuquerque Pub. Schools, 92 N.M. 635, 593 P.2d 470 (Ct.App.1978).

We conclude that neither an “accident” taking months or years to happen, nor an “injury” taking months or years to manifest itself, is an impermissible predicate for a valid compensation claim under our legislature’s use of the term “accidental injury.” See Larson, §§ 37.20, 78.42. The guidance of these authorities and cases is that the terms appearing in the statutes shall be construed so as to reach fair and consistent conclusions.

Such fairness and consistency is particularly significant where a statute of limitations is raised as a defense. See Gaston v. Hartzell, 89 N.M. 217, 549 P.2d 632 (1976) (statute of limitations is procedural not substantive; law favors action over limitation); see also Larson, § 78.42(b) (logic generally underlying statutes of limitations, that seasonable assertion of right is required, is often misplaced in a beneficent piece of social legislation where no amount of vigilance is of any help, such as with latent injuries); Larson, § 2.50 (compensation permits recipient to avoid becoming burden on others and evidence establishes workers’ compensation does not usually go beyond that which is necessary to keep worker from destitution).

Thus the purposes for which statutes of limitations were enacted generally, to preclude stale litigation and bar remedy to those having been “sleeping on their rights,” should be carefully invoked where the prescription is one contained in remedial social legislation. This is so because the result of cutting off compensation merely brings about the harm the beneficent piece of legislation was designed to prevent, namely to prevent the injured worker or his dependents from becoming dependent on state welfare.

We turn now to caselaw more directly on point. As to the proper construction of “accidental injury,” and whether a time bar precludes compensation benefits from accruing to a living, but injured employee, the case of Casias v. Zia Co., 93 N.M. 78, 596 P.2d 521 (Ct.App.1979) is controlling. The Casias court said:

We, therefore, apply the meaning “date when the compensable injury manifests itself” or “date when the workman knows or should know he has suffered a compensable injury” to all of the portions of the Workmen’s Compensation Act where the terms “time of accident,” “time of injury,” “date of disability,” “date of accidental injury,” or words of similar import, are used, * * *

Today we extend the Casias logic to injuries resulting in death, and thus to the “accidental injury” language contained in Section 52-1-46.

As noted above, death benefits constitute a separate cause of action and are not derivative of the cause the employee could have maintained had he survived. Because of this, it is not surprising that the dictum supporting the Casias holding notes but does not emphasize the policy upon which we rely today. Dictum in Casias notes strong public policy stands against rendering victims of accidental employment injuries dependent on state welfare programs. Nothing said in Casias would support the contention that this policy does not extend to beneficiaries and dependent heirs of an employee having died as a result of an employment related injury. This beneficent legislation should not be construed by this court to find policy supportive of compensation for an injured employee but unsupportive of compensation for his dependent widow. Such is not the intent of our legislature.

Our ruling is consistent with the application of the Casias rule to other provisions of the Act that do not address a worker’s claim for personal benefits. See, e.g., Hernandez v. Levi Strauss, Inc., 107 N.M. 644, 763 P.2d 78 (Ct.App.1988) (application of the rule to pre-1988 claims brought by employers against the Subsequent Injury Fund). In the present case, it was determined that worker knew or should have known that he suffered a compensable injury on August 17, 1987. Thus August 17, 1987 is the date of his accidental injury. Worker died on April 30, 1989, within two years of his accidental injury. The WCJ therefore properly awarded death benefits.

II. Fund’s Appeal

The Fund raises three issues challenging its liability under these facts. We need not address two of these issues because we view the issue concerning the certificate of preexisting impairment as dispositive.

The Fund argues that employer failed to substantially comply with SIA. Specifically, the Fund contends that an employer does not substantially comply with NMSA 1978, Section 52-2-6 (Cum.Supp.1986) (Interim Act), where it fails to seek a worker’s signature for a substantial amount of time after the accident. We agree.

The relevant portion of Section 52-2-6 states that a certificate of preexisting condition,

(B) * * * shall be signed and acknowledged by the workman and a physician duly licensed to practice medicine * * *. (D) In the event the certificate of preexisting physical impairment certifies that the impairment exists, the Subsequent Injury Act shall be applicable to any disability arising out of an accident or occurrence taking place after the date a certificate is executed.

The filing of the certificate is a procedural prerequisite to recovery from the Fund. City of Roswell v. Chavez, 108 N.M. 608, 775 P.2d 1325 (Ct.App.1989). However, an employer may file the certificate after the subsequent injury where the employer had prior actual knowledge of the preexisting impairment. Fierro v. Stanley’s Hardware, 104 N.M. 50, 716 P.2d 241 (1986); but cf. NMSA 1978, § 52-2-6 (Cum. Supp.1988) (SIA applies only to injuries which occur after the filing of the certificate). Moreover, the technical requirements of Section 52-2-6 will be met where the certificate “substantially complies” with the purposes of SIA. Rader v. Don J. Cummings Co., Inc., 109 N.M. 219, 784 P.2d 38 (Ct.App.1989). These purposes include hiring and retaining impaired and injured workers and documenting the nature and extent of their impairment. Id.; Vaughn v. United Nuclear Corp., 98 N.M. 481, 650 P.2d 3 (Ct.App.1982).

In Rader, we held that the purposes of SIA were satisfied where the employer had knowledge of the preexisting impairment and filed an unsigned certificate accompanied with an explanation that worker refused to sign it. Id. 109 N.M. at 222-23, 784 P.2d at 41-42. Here, there is no dispute that employer knew of worker’s preexisting impairment before the subsequent injury. Instead, the Fund seeks to distinguish Rader by relying on employer’s failure to even attempt to obtain worker's signature while he was alive. Employer counters by arguing that the two basic purposes of the act, documentation and retention, have been fulfilled. As we noted in Rader, “the purpose of documenting the impairment is minimally served, if at all, where the employer and the worker wait until long after the subsequent injury to document the preexisting impairment.” Id. at 222, 784 P.2d at 41.

Under the facts of this case, we conclude that employer failed to substantially comply with the purposes of SIA. Worker filed a claim for workers’ compensation benefits against employer on August 27, 1987. Employer filed a petition for a claim against the Fund on January 21, 1988, but did not file a certificate of preexisting impairment until early October 1989. Apparently, employer never sought worker’s signature during the twenty months that worker was alive after he filed his claim against the employer. Employer offers no explanation for the failure to obtain worker’s signature, other than to analogize the facts to Rader by asserting that worker’s death precluded it from fully complying with the filing requirements. However, we do not view employer’s inaction while worker was alive as constituting “substantial compliance” with the purposes of SIA. When we apply “substantial compliance” analysis to mandatory statutory language, we are aware that “there is a point beyond which the mandatory provisions of the [Workers’ Compensation] Act cannot be ignored. If the mandatory provisions are disregarded altogether it is clear that the intention of the Legislature would be totally frustrated.” Security Trust v. Smith, 93 N.M. 35, 38, 596 P.2d 248, 251 (1979). In this case, employer’s failure to act went beyond the limits of both the language of SIA and the underlying purposes.

III. Attorney’s Fees

Pursuant to our authority under NMSA 1978, Section 52-l-54(E) (Cum. Supp.1986), we hereby order employer to pay widow $2000 dollars for this appeal.

CONCLUSION

Claimant also argues that Section 52-1-46 is unconstitutional in that it violates the equal protection clause of the fourteenth amendment to the United States Constitution. However, we need not decide this issue because it is not necessary to the disposition of this case. In re Bunnell, 100 N.M. 242, 668 P.2d 1119 (Ct.App.1983) (Court will not decide constitutional question unless necessary to the disposition of the case). For the reasons stated above, we affirm the award of death benefits and reverse the compensation order insofar as it apportions liability to the Subsequent Injury Fund.

IT IS SO ORDERED.

ALARID, C.J., concurs. BIVINS, J., dissents.