{
  "id": 5360910,
  "name": "Joe G. CORDOVA, Plaintiff-Appellant, v. UNION BAKING COMPANY and New Hampshire Insurance Company, Defendants-Appellees",
  "name_abbreviation": "Cordova v. Union Baking Co.",
  "decision_date": "1969-04-11",
  "docket_number": "No. 277",
  "first_page": "241",
  "last_page": "244",
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      "cite": "453 P.2d 761"
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  "court": {
    "name_abbreviation": "N.M. Ct. App.",
    "id": 9025,
    "name": "Court of Appeals of New Mexico"
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    "name_long": "New Mexico",
    "name": "N.M."
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      "reporter": "N.M.",
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      "year": 1966,
      "opinion_index": 0,
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      "cite": "79 N. M. 99",
      "category": "reporters:state",
      "reporter": "N.M.",
      "case_ids": [
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      "weight": 2,
      "year": 1968,
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  "last_updated": "2023-07-14T15:41:23.226975+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "SPIESS, C. J., and WOOD, J., concur."
    ],
    "parties": [
      "Joe G. CORDOVA, Plaintiff-Appellant, v. UNION BAKING COMPANY and New Hampshire Insurance Company, Defendants-Appellees."
    ],
    "opinions": [
      {
        "text": "OPINION\nHENDLEY, Judge.\nPlaintiff contends the trial court erred in granting defendant\u2019s motion for summary judgment on the ground that the statute of limitations had run on plaintiff\u2019s claim for compensation benefits. We disagree.\nPlaintiff was injured June 29, 1965 in the course of his employment and was hospitalized for nine or ten days. He returned to work for several days but had to. stop working from July 20, 1965 to August 4, 1965, when he was released by his doctor to return to work. Plaintiff then worked continuously from August 5, 1965 to May 8, 1967. He worked at'substantially the same pay during this period but because of his back injury his employer directed other employees to assist plaintiff with any work which required heavy lifting. Plaintiff did not see a doctor from August 5, 1965 to May 8, 1967, although he continually experienced pain. Plaintiff received compensation benefits for the period of July 7, 1965 to August 5, 1965. The complaint was filed February 9, 1968.\nThe limitations statute in force. at the time of plaintiff\u2019s accident on June 29, 1965, was N.M.Laws 1963, Ch. 269, \u00a7 6, which reads in part:\n\u201cA. If an employer or his- insurer fails or refuses to pay a workman any installment of compensation to which the workman is entitled under \u25a0 the Workmen\u2019s 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\u2019s 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.\u201d\nUnder this statute plaintiff was required to file his claim within one year after the failure or refusal to pay compensation. See Roybal v. County of Santa Fe, 79 N. M. 99, 440 P.2d 291 (1968). The issue is when did the statute begin to run.\nPlaintiff contends the statute did not begin to run until May 8, 1967, the day plaintiff quit working and accordingly, the employer had no obligation to pay until plaintiff quit work. We disagree.\nHere, the obligation to pay depends on whether plaintiff had a partial disability as defined in \u00a7 59-10-12.19, N.M.S.A.1953 (Supp.1967):\n\u201cAs used in the Workmen\u2019s Compensation Act [59-10-1 to 59-10-37], \u2018partial disability\u2019 means a condition whereby a workman, by reason of injury arising out of and in the course of his employment, is unable to some percentage-extent to perform the usual tasks in the work he was performing at the time of his injury and is unable to some percentage-extent to perform any work for which he is fitted by age, education, training, general physical and mental capacity and previous work experience.\u201d\nTo be partially disabled under this statute plaintiff contends there must be a showing of two things: (1) an inability, to some percentage extent, to perform the usual work the workman was performing when injured and (2) an inability, to some percentage extent, to perform any work for which the workman is fitted.\nThese same issues were raised in Ortega v. New Mexico State Highway Department, 77 N.M. 185, 420 P.2d 771 (1966) and, as in Ortega, we need only apply the undisputed facts to both of the asserted requirements for partial disability.\nPlaintiff is thirty-five years old. He did not complete the seventh gfade. He had worked for defendant for ten years and had progressed from baker\u2019s helper to baker-foreman on the date of the injury.\nPlaintiff concedes, he was, to some percentage extent, unable to perform the usual tasks of a baker after the injury.\nPrior to working for defendant, plaintiff had worked fueling diesel engines, laying concrete blocks and finishing cement. If we assume he was still \u201cfitted\u201d to do this work after an interval of ten years, we still reach the conclusion he was to some percentage extent unable to perform this work. This conclusion is based on the undisputed facts: (1) he could not lift heavy items, (2) he experienced continuous back pain even while wearing a back brace, (3) his left leg was weak and ached and (4) he couldn\u2019t touch one or more of his toes on his left foot because of pain. Plaintiff to some percentage extent, was unable to perform \u201cany work\u201d for which he was fitted. See Quintana v. Trotz Construction Company, 79 N.M. 109, 440 P.2d 301 (1968).\nPlaintiff however contends that even though the employer may have been obligated to pay him compensation when he returned to work, nevertheless the limitation period did not commence to run until he stopped work because the injury for which he was entitled to compensation was not \u201creasonably apparent\u201d until then.\nAs we stated in Noland v. Young Drilling Company, 79 N.M. 444, 444 P.2d 771 (Ct.App.1968):\n\u201cAs 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. There is nothing in the act as we read it which indicates th^t the running of the statute may be delayed until a more serious disability is ascertainable.\u201d\nThe undisputed facts referred to above show it was \u201creasonably apparent\u201d that plaintiff had a compensable injury when he returned to work. Knowledge that there is a compensable disability, and not the full extent thereof, is the controlling factor. Noland v. Young Drilling Company, supra.\nThe judgment of the trial court is affirmed.\nIt is so ordered.\nSPIESS, C. J., and WOOD, J., concur.",
        "type": "majority",
        "author": "HENDLEY, Judge."
      }
    ],
    "attorneys": [
      "Victor R. Ortega, Arturo Ortega, Robinson & Ortega, Albuquerque, for appellant.",
      "James C. Ritchie, John P. Burton, Rodey, Diclcason, Sloan, Akin & Robb, Albuquerque, for appellees."
    ],
    "corrections": "",
    "head_matter": "453 P.2d 761\nJoe G. CORDOVA, Plaintiff-Appellant, v. UNION BAKING COMPANY and New Hampshire Insurance Company, Defendants-Appellees.\nNo. 277.\nCourt of Appeals of New Mexico.\nApril 11, 1969.\nVictor R. Ortega, Arturo Ortega, Robinson & Ortega, Albuquerque, for appellant.\nJames C. Ritchie, John P. Burton, Rodey, Diclcason, Sloan, Akin & Robb, Albuquerque, for appellees."
  },
  "file_name": "0241-01",
  "first_page_order": 297,
  "last_page_order": 300
}