{
  "id": 5363432,
  "name": "Bernard A. BOWERS, Plaintiff-Appellant, v. WAYNE LOVELADY DODGE, INC., Defendant-Appellee",
  "name_abbreviation": "Bowers v. Wayne Lovelady Dodge, Inc.",
  "decision_date": "1969-08-01",
  "docket_number": "No. 286",
  "first_page": "475",
  "last_page": "477",
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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": [
      "Bernard A. BOWERS, Plaintiff-Appellant, v. WAYNE LOVELADY DODGE, INC., Defendant-Appellee."
    ],
    "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 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\u2019s compensation claim was filed on January 12, 1968.\nThe limitations statute in force at the time of plaintiff\u2019s accident on January 22, 1966 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 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.\nThere 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.\nPlaintiff claims he did not suffer a disability until the eighth day after his discharge, see \u00a7 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.\nThe 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:\n\u201c * * * 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. * * *\u00bb\nCordova v. Union Baking Company, 80 N.M. 241, 453 P.2d 761 (Ct.App.1969).\nThe undisputed facts show that it should have been reasonably apparent to the plaintiff 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 \u00a7 59-10-13.5, N.M.S.A.1953; Moody v. Hastings, 72 N.M. 132, 381 P.2d 207 (1963).\nThe undisputed facts are: While employed at his usual task of body and fender1 work, plaintiff suffered two blows to his head on January 22, 1966. His head hurt for the remainder of the day and he didn\u2019t do much work the rest of the day. That night he had a convulsion, for which he was hospitalized four days. He returned to 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 \u201cguessed\u201d 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 \u00a7 59-10-12.19, N.M.S.A.1953 (Supp.1967).\n' The limitation period had run when plaintiff filed his claim.\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": [
      "John J. Duhigg, Sheehan, Duhigg & Cronin, Albuquerque, for appellant.",
      "James A. Parker, Modrall, Seymour, Sperling, Roehl & Plarris, Albuquerque, for appellee."
    ],
    "corrections": "",
    "head_matter": "457 P.2d 994\nBernard A. BOWERS, Plaintiff-Appellant, v. WAYNE LOVELADY DODGE, INC., Defendant-Appellee.\nNo. 286.\nCourt of Appeals of New Mexico.\nAug. 1, 1969.\nJohn J. Duhigg, Sheehan, Duhigg & Cronin, Albuquerque, for appellant.\nJames A. Parker, Modrall, Seymour, Sperling, Roehl & Plarris, Albuquerque, for appellee."
  },
  "file_name": "0475-01",
  "first_page_order": 531,
  "last_page_order": 533
}