Romero v. American Furniture Company

526 P.2d 803, 86 N.M. 661

• Court: New Mexico Court of Appeals
• Decided: August 28, 1974
• Docket: 1308
• Status: Published

Opinions

OPINION

HENDLEY, Judge.

On December 16, 1969 plaintiff suffered injury to both elbows in the scope of and arising out of his employment with defendant, American Furniture Company. The injury aggravated a pre-existing bone condition in his elbows, necessitating surgery. After surgery, on December 29, 1969, plaintiff had a limitation of motion in his elbows, but was able to resume work as a physical laborer. Plaintiff’s elbow condition allegedly worsened approximately two years after the original injury around December, 1971. As a result plaintiff filed an action on October 25, 1972, for Workmen’s Compensation for a scheduled injury, claiming “ * * * partial loss of use of * * * ” both arms at the elbow, caused by the original injury. Section 59-10-18.4, N.M.S.A.1953 (Repl.Vol. 1960, pt. 1, Supp.1973).

The trial court granted defendants’ motion to dismiss pursuant to § 21-1-1(41) (b), N.M.S.A.1953 (Repl.Vol. 1970) for plaintiff’s failure to: (1) file a claim within the one year statute of limitations (§ 59-10-13.6, N.M.S.A.1953 (Repl.Vol. 1960, pt. 1, Supp.1973)); and (2) give written notice of claimed disability within thirty days (§ 59-10-13.4, N.M.S.A.1953 (Repl.Vol. 1960, pt. 1)). Plaintiff appeals. Our review is pursuant to the substantial evidence rule. Frederick v. Younger Van Lines, 74 N.M. 320, 393 P.2d 438 (1964). We affirm on the basis of the running of the statute of limitations.

Noland v. Young Drilling Company, 79 N.M. 444, 444 P.2d 771 (Ct.App.1968) states the applicable rule on when the statute of limitations begins to run in Workmen’s Compensation cases:

“ . . .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. . . . ”

See Bowers v. Wayne Lovelady Dodge, Inc., 80 N.M. 475, 457 P.2d 994 (Ct.App. 1969). On this question the trial court found:

“5. That plaintiff had an impairment of function or limitation of motion in his right elbow after recovery from the surgery (and in his left elbow as well). This impairment of function or limitation of motion resulted in some disability.

“7. That this impairment of function or limitation of motion and resulting disability in the elbows was the same on March 2, 1970, when Dr. Rosenbaum released plaintiff from his postoperative care, as it is presently. There has been no increase in disability.

“8. That it was reasonably apparent to plaintiff that he had some limitation of motion or impairment in function and disability of his elbows after recovery from his surgery and before March 2, 1970, but plaintiff did not file the present action until October 25, 1972.”

Plaintiff first questions the substantiality of the evidence to support these findings, and specifically finding No. 8. He claims the uncontradicted evidence establishes that he did not know his disability was permanent until he was so informed by the doctor on December 14, 1971, within the statutory period. Viewing the evidence in the light most favorable to the court’s findings we disagree with plaintiff. Frederick v. Younger Van Lines, supra.

Dr. Rosenbaum testified that plaintiff had a limitation of motion of twenty-five percent at the time he released plaintiff to return to work in January, 1970, approximately the same limitation he had at the time of trial. To the extent plaintiff’s elbow movement was limited, he had partially lost the use of the elbows.

Plaintiff testified he was “hurting” for the first six months after surgery. Thereafter when he drove a truck “[i]t was very painful * * * ” at times. Since there was an increase in pain, with limitation of motion unchanged, that caused plaintiff to finally see a doctor and file a claim, it should have been “reasonably apparent” to him after surgery that he had a compensable partial loss of use of his elbows.

We further find substantial evidence to support the other challenged finding, No. 7, in the above testimony of Dr. Rosenbaum. Finding No. 5 was not challenged.

Plaintiff also argues that despite these findings, the case is controlled by Gomez v. Hausman Corporation, 83 N.M. 400, 492 P.2d 1263 (Ct.App.1971), which held that when the claimant returns to the same work he was doing before the injury he cannot be on notice that he “ * * * is unable to some percentage-extent to perform the usual tasks in the work he was performing at the time of his injury. * * *” Section 59-10-12.19, N.M.S.A. 1953 (Repl.Vol. 1960, pt. 1, Supp.1973). Plaintiff in this case did return to substantially the same work after his injury. A workman would be on notice of a compensable scheduled injury when it becomes or should reasonably become apparent to him that he suffered “a partial loss of use” of the scheduled body member. Whether he can continue in his prior employment is not material.

The judgment is affirmed.

It is so ordered.

HERNANDEZ, J., concurs. LOPEZ, J., dissenting.