Salazar v. Albuquerque Tribune

763 P.2d 690, 107 N.M. 674
CourtNew Mexico Court of Appeals
DecidedOctober 6, 1988
Docket10283
StatusPublished
Cited by2 cases

This text of 763 P.2d 690 (Salazar v. Albuquerque Tribune) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Salazar v. Albuquerque Tribune, 763 P.2d 690, 107 N.M. 674 (N.M. Ct. App. 1988).

Opinion

OPINION

APODACA, Judge.

Respondent CNA Insurance Companies (insurer) appeals from an order awarding claimant Jon Carlos Salazar (claimant) scheduled injury benefits for the loss of his left leg below the knee, medical expenses and attorney fees. Insurer is The Albuquerque Tribune’s (employer) workers’ compensation carrier; employer publishes a daily newspaper. On August 25, 1984, claimant fell at his place of employment, injuring his left foot. When he fell, claimant had an infection already established in his foot. The hearing officer found, and this finding was not challenged, that the fall aggravated the preexisting infection and led, as a natural and direct result, to the amputation of claimant’s leg below the knee on April 15, 1985. On appeal, insurer argues claimant’s claim was barred by the statute of limitations. The precise issue before us, then, is when, on the facts of this case, the statute of limitations began to run. We disagree with insurer’s contention that the claim was barred and therefore affirm the hearing officer’s award of benefits.

When injured, claimant was employed as employer’s sports editor. After the fall, doctors diagnosed the foot infection at the hospital. The infection was treated by surgical drainage, and only the fourth toe on claimant’s left foot was amputated at that time. Insurer paid for this treatment and related expenses. Despite the treatment, the infection progressed. On December 17, 1984 and March 21, 1985, claimant was briefly hospitalized for further treatments. Insurer paid for the December 1984 treatment; however, on March 28, 1985, insurer’s adjuster informed claimant that insurer would not pay for the March 1985 hospitalization. On April 10, 1985, claimant was informed that efforts to save his foot had been unsuccessful. His leg was amputated five days later. Insurer refused to pay for the amputation. Claimant filed his claim for benefits with the Workers’ Compensation Administration on April 10, 1987.

In the administrative proceedings, insurer denied causation and raised the statute of limitations as a defense. Insurer’s proposed findings of fact asked the hearing officer to find that “[f]rom August 25,1984 through April 10, 1985, Claimant worked with pain, reduced his activities, requested others to assist him in his duties, and sought and received medical attention to relieve his pain and disability” and that “[f]rom August 25, 1984 through April 10, 1985, it became reasonably apparent or should have become reasonably apparent to Claimant that he had an injury and partial disability on account of which he was entitled to compensation.” Additionally, insurer requested a finding that the claim was filed

more than two years after it became reasonably apparent, or should have become reasonably apparent to Claimant that he had an injury and partial disability on account of which he was entitled to compensation, and more than two years after the employer and the Worker’s Compensation carrier expressly refused and failed to make a payment of compensation.

Insurer concedes that the hearing officer found against it on the matters addressed in the requested findings. Thus, part of insurer’s argument on appeal has been that there is no substantial evidence to support the determination that claimant was not partially disabled prior to April 10, 1985.

Preliminarily, we note the statute of limitations does not apply to medical expenses; such expenses may be claimed even though the right to claim installment compensation payments may be barred. Nasci v. Frank Paxton Lumber Co., 69 N.M. 412, 367 P.2d 913 (1961). Thus, insurer is responsible for paying the medical expenses, irrespective of our disposition of this appeal.

When a worker is disabled by a work-related injury, he has a maximum of two years and thirty-one days from the occurrence of his disability to file his claim. See ABF Freight Sys. v. Montano, 99 N.M. 259, 657 P.2d 115 (1982); Cole v. J.A. Drake Well Serv., 106 N.M. 484, 745 P.2d 392 (Ct.App.1987). Insurer argues the statute of limitations begins to run from the date on which it becomes reasonably apparent, or should become reasonably apparent, to a worker that he has an injury on account of which he is entitled to compensation, and the employer fails or refuses to make a payment. See Noland v. Young Drilling Co., 79 N.M. 444, 444 P.2d 771 (Ct.App.1968). Claimant, on the other hand, does not dispute the applicability of these cases, but only insurer’s method of applying the law enunciated by them to the facts of this case.

Insurer first contends the statute of limitations began to run on August 25, 1984, the date of the fall and toe amputation. It characterizes this amputation as a scheduled injury for which claimant was entitled to, but was not paid, compensation and thus asserts the limitations period began to run at that time. Yet, in the administrative proceedings, insurer requested a finding that the preexisting infection, not the injury, caused the amputation of the toe. We believe insurer cannot so radically change its theory of the case on appeal. See American Bank of Commerce v. United States Fidelity & Guar. Co., 85 N.M. 478, 513 P.2d 1260 (1973). Besides, the hearing officer made no finding on the cause of the toe amputation, and, after reviewing the evidence on the record as a whole, we cannot say as a matter of law that this amputation was compensable as a scheduled injury. We necessarily conclude that insurer’s contention on this point is without merit.

Insurer next argues claimant’s cause of action accrued on the date of the fall because he was partially disabled from that date until his recovery from the leg amputation. Insurer asserts that ABF Freight held it is reasonably apparent to a worker that he has sustained a compensable injury when he returns to work, works with pain, has to ask others to assist him in his duties, seeks medical attention and applies home remedies. We believe insurer is misapplying the case. In ABF Freight, the trial court found the claimant disabled as evidenced by the particular facts noted above, and the supreme court merely upheld those findings as supported by substantial evidence.

In this case, however, the hearing officer rejected insurer’s requested findings on the issue before us. A trial court’s determination of factual findings frequently involves selecting inferences drawn from adduced evidence. The possibility that on similar facts, such as the facts relied upon by insurer in ABF Freight, another trier of fact may have drawn different inferences and made different findings does not compel reversal. See State v. Anderson, 107 N.M. 165, 754 P.2d 542 (Ct.App.1988). The question on appeal is whether the findings are supported by substantial evidence, not whether the trial court could have reached a different conclusion. Bagwell v. Shady Grove Truck Stop, 104 N.M.

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Cite This Page — Counsel Stack

Bluebook (online)
763 P.2d 690, 107 N.M. 674, Counsel Stack Legal Research, https://law.counselstack.com/opinion/salazar-v-albuquerque-tribune-nmctapp-1988.