{ "id": 2823534, "name": "Robert ANAYA, Plaintiff-Appellant, v. BIG THREE INDUSTRIES, INC., and Highlands Insurance Company, Defendants-Appellees", "name_abbreviation": "Anaya v. Big Three Industries, Inc.", "decision_date": "1974-03-27", "docket_number": "No. 1286", "first_page": "168", "last_page": "172", "citations": [ { "type": "official", "cite": "86 N.M. 168" }, { "type": "parallel", "cite": "521 P.2d 130" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "21 A.L.R. 156", "category": "reporters:specialty", "reporter": "A.L.R.", "year": 1921, "opinion_index": 0 }, { "cite": "202 P. 524", "category": "reporters:state_regional", "reporter": "P.", "year": 1921, "opinion_index": 0 }, { "cite": "27 N.M. 412", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8842401 ], "year": 1921, "opinion_index": 0, "case_paths": [ "/nm/27/0412-01" ] }, { "cite": "70 N. M. 34", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2853358 ], "weight": 2, "year": 1962, "opinion_index": 0, "case_paths": [ "/nm/70/0034-01" ] }, { "cite": "67 N.M. 156", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2715469 ], "weight": 2, "year": 1960, "opinion_index": 0, "case_paths": [ "/nm/67/0156-01" ] }, { "cite": "44 N.M. 275", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1566936 ], "weight": 2, "year": 1940, "opinion_index": 0, "case_paths": [ "/nm/44/0275-01" ] }, { "cite": "74 Ariz. 347", "category": "reporters:state", "reporter": "Ariz.", "case_ids": [ 5193123 ], "weight": 2, "year": 1952, "opinion_index": 0, "case_paths": [ "/ariz/74/0347-01" ] }, { "cite": "79 N.M. 711", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2740742 ], "weight": 5, "opinion_index": 0, "case_paths": [ "/nm/79/0711-01" ] }, { "cite": "84 N.M. 565", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2765891 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/84/0565-01" ] } ], "analysis": { "cardinality": 519, "char_count": 11692, "ocr_confidence": 0.798, "pagerank": { "raw": 1.0124111973541537e-07, "percentile": 0.5425142546920689 }, "sha256": "219f4d8787120f2f4f9ff5a4bb57ce15f009a2e8effd4744bc4d5ba6833a6d09", "simhash": "1:93b087c3594e8df3", "word_count": 1918 }, "last_updated": "2023-07-14T22:44:27.328252+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "SUTIN and LOPEZ, JJ., concur." ], "parties": [ "Robert ANAYA, Plaintiff-Appellant, v. BIG THREE INDUSTRIES, INC., and Highlands Insurance Company, Defendants-Appellees." ], "opinions": [ { "text": "OPINION\nWOOD, Chief Judge.\nIn this workmen\u2019s compensation case, the trial court concluded that neither actual notice nor written notice had been given in compliance with \u00a7 59-10-13.4, N.M.S.A. 1953 (Repl. Vol. 9, pt. 1). Plaintiff appeals from the dismissal of his claim.\nSection 59-10-13.4, supra, reads:\n\u201cA. Any workman claiming to be entitled to compensation from any employer shall give notice in writing to his employer of the accident and of the injury within thirty [30] days after their occurrence; unless, by reason of his injury or some other cause beyond his control the workman is prevented from giving notice within that time, in which case he shall give notice as soon as may reasonably be done, and at all events not later than sixty [60] days after the occurrence of the accident.\n\u201cB. No written notice is required to be given where the employer or any superintendent or foreman or other agent in charge of the work in connection with which the accident occurred had actual knowledge of its occurrence.\u201d\nActual notice.\nTo avoid the requirement of written notice only actual knowledge of the accident is required. Beckwith v. Cactus Drilling Corporation, 84 N.M. 565, 505 P. 2d 1241 (Ct.App.1972). Such actual knowledge must be acquired within the time provided for giving written notice. Rohrer v. Eidal International, 79 N.M. 711, 449 P.2d 81 (Ct.App.1968). If there was actual knowledge of the accident in this case, it was timely. The issue is whether the evidence supports the findings of the trial court to the effect that there was no actual knowledge.\nThe evidence is that on the day of the alleged accident, plaintiff was working with his immediate supervisor in effecting repairs to equipment. The two worked together on the repairs on Friday, Saturday (until noon) and on the following Monday. The dates are January 7, 8 and 10, 1972. On Friday morning, the two lifted a hopper from a generator. According to plaintiff, the accident occurred during this lifting. Also, according to plaintiff, he told the supervisor he had hurt his back at the time it happened on Friday, and also informed him about the accident while they were working together on Saturday and Monday.\nThe supervisor\u2019s testimony differs. The supervisor repeatedly testified that he had no recollection of plaintiff stating that he had hurt his back and no recollection of any complaints of back pain by plaintiff on any of the three days the two worked together.\nPlaintiff asserts the supervisor\u2019s \u201cno recollection\u201d testimony does not conflict with plaintiff\u2019s positive testimony. See Ratley v. Industrial Commission, 74 Ariz. 347, 248 P.2d 997 (1952). He asserts that apart from the \u201cno recollection\u201d testimony, there is no evidence which conflicts with plaintiff\u2019s testimony concerning actual knowledge. On this basis, he contends the uncontradicted evidence rule applies and requires us to hold that the supervisor had actual knowledge of the accident. See Medler v. Henry, 44 N.M. 275, 101 P.2d 398 (1940).\nWe need not decide the effect of \u201cno recollection\u201d testimony in this case. There is other evidence which conflicts with plaintiff\u2019s testimony. Because of this conflicting evidence, the uncontradicted evidence rule is not applicable.\nThe conflicting evidence was testimony of the supervisor and of the employer\u2019s plant manager.\nThe supervisor testified he was \u201cpositive\u201d that plaintiff made no statement to him about his back; that he was \u201csure\u201d that plaintiff never stated he had hurt his back; that he was \u201ccertain\u201d that plaintiff did not report an injury to him. Asked if a report of injury on Friday, Saturday and Monday could have occurred and he could have failed to remember these reports, the supervisor stated: \u201cNot three days in a row, no, sir.\u201d Assuming this testimony of the supervisor conflicts with his \u201cno recollection\u201d testimony, the conflict was to be resolved by the trial court. Rohrer v. Eidal International, supra.\nThe manager testified that he learned of plaintiff\u2019s claim on March 6, 1972, and on that date questioned the supervisor about the claim. According to the manager, the supervisor stated he had no knowledge of plaintiff getting hurt; that plaintiff \u201cdidn\u2019t make any report to him at all.\u201d\nThe foregoing evidence conflicts with plaintiff\u2019s testimony and is substantial evidence, if believed, that the supervisor had no actual knowledge of the accident. It was for the trial court to resolve the conflict. Rohrer v. Eidal International, supra. The trial court resolved the conflict in finding an absence of actual knowledge. It did not err in doing so.\nWritten notice.\nSection 59-10-13.4(A), supra, requires written notice \u201cto his [the workman\u2019s] employer of the accident and of the injury within thirty [30] days after their occurrence.\u201d An insurance adjuster for the employer\u2019s workmen\u2019s compensation insurer received written notice of an accident and injury on February 22, 1972. The trial court found that plaintiff knew or should have known of the accident and injury on January 7, 8 and 10, 1972. We view this finding as a finding that plaintiff knew or should have known of a compensable injury on these dates. The trial court also found that no written notice of the accident and injury was given to the employer or any agent within the time periods provided in \u00a7 59-10-13.4(A), supra. The conclusion of no written notice is necessarily based on these findings. Plaintiff asserts the evidence does not support the findings. We agree.\nThere are two parts to the written notice issue. They are: (1) the time for giving written notice and (2) the person to whom written notice was given.\n(1) Time for giving written notice.\nThe sixty day provision of \u00a7 59-10-13.-4(A), supra, is not involved. Our concern is with the requirement that written notice of the accident and injury be given within thirty days after their occurrence. This requirement means: \u201cThe period limited for this notice begins to run from the time the workman knows, or should know by the exercise of reasonable diligence, that he has sustained injury by accident in the course of his employment.\u201d Montell v. Orndorff, 67 N.M. 156, 353 P.2d 680 (1960). The knowledge of a workman, with which this rule is concerned, is knowledge of a compensable injury. Langley v. Navajo Freight Lines, Inc., 70 N. M. 34, 369 P.2d 774 (1962). \u201cThe period for written notice does not begin to run until plaintiff is charged with such knowledge.\u201d Rohrer v. Eidal International, supra.\nThere is no evidence that plaintiff knew or should have known of a compensable injury through January 10, 1972. During that period of time plaintiff worked at his regular job. For a reason unrelated to the workmen\u2019s compensation claim, plaintiff was discharged at the end of his work on January 10th. At that time, according to testimony elicited on cross-examination, plaintiff intended to return to work the following day, had no intention of discontinuing his work and had planned to continue his work.\nCompensation is paid only when there is a disability. Section 59-10-13.3, N.M.S.A.1953 (Repl.Vol. 9, pt. 1). Disability is defined in terms of inability to perform the usual tasks of his employment or work for which the workman is fitted. Sections 59-10-12.18 and 59-10-12.19, N. M.S.A.1953 (Repl.Vol. 9, pt. 1, Supp.1973). There is no evidence that plaintiff suffered a disability within the meaning of \u00a7\u00a7 59-10-12.18 and 59-10-12.19, supra, on January 7, 8 or 10, 1972. Accordingly, there is no evidence of a compensable injury on those dates. Absent evidence of a compensable injury, there is no basis for finding that plaintiff knew or should have known of a compensable injury on those dates.\nPlaintiff requested the trial court to find that the first time plaintiff knew he had a compensable injury was on January 25, 1972. He contends the refusal of the requested finding was error. We agree.\nThe trial court found that plaintiff called his doctor for an appointment on January 10 and obtained the January 25, 1972 appointment. Between the time of plaintiff\u2019s alleged injury on January 7, and the doctor\u2019s appointment on January 25, 1972, plaintiff continued with his second job, that of watchman on weekends, at the county dump. He had continued with the weekend watchman\u2019s job to time of trial.\nAfter being discharged on January 10, plaintiff sought employment of the same type that he had been performing for the employer in this case. He sought this employment at three different firms. Under one line of evidence, he sought this employment prior to the doctor\u2019s appointment. Under another line of evidence, his job hunting was after the doctor\u2019s appointment.\nTestimony elicited on direct examination was that plaintiff had previously had back trouble but had continued working while undergoing medical treatment. After the alleged injury on January 7, 1972, plaintiff testified that he had back pain and had difficulty in bending and lifting, but felt he would be able to get along with the pain until he saw the doctor. The doctor\u2019s appointment was for January 25, 1972.\nAccording to plaintiff, at the appointment on January 25, the doctor stated that plaintiff could not do heavy work and could not go back to the work he had been doing for the employer in this case.\nUnder the evidence, the earliest that plaintiff could be charged with knowledge of a compensable injury is January 25, 1972. The trial court erred in refusing the requested finding.\nThe written notice, having been received on February 22, 1972, was within thirty days of the time plaintiff knew or should have known of a compensable injury. The trial court erred in finding that written notice was not given within the time provided by \u00a7 59-10-13.4(A), supra.\n(2) Person to whom notice was given.\nSection 59-10-13.4(A), supra, states that the written notice is to be given the employer. The undisputed evidence is that the written notice was received by an insurance adjuster. Defendants assert this fails to meet the statutory requirement. We disagree.\nThe adjuster testified that prior contact with plaintiff had been in connection with an ankle injury that plaintiff had received in 1969 while working for the employer in this case. According to the adjuster, plaintiff was aware the adjuster did adjusting work on matters that occurred at the employer\u2019s plant. According to the adjuster, when he received the written notice from plaintiff\u2019s attorney, he was acting for the employer.\n\u201c[T]he fact of agency when it rests in parol, may be .established on the trial by the testimony of the agent himself.\u201d State v. Kelly, 27 N.M. 412, 202 P. 524, 21 A.L.R. 156 (1921). The adjuster\u2019s trial testimony, that he had acted for the employer in connection with a prior injury of plaintiff and was acting for the employer in receiving the written notice in this case, is substantial evidence of his agency. There is no contradictory evidence concerning the agency. The trial court erred in finding that no written notice was given to an agent of the employer.\nWe affirm the trial court\u2019s decision concerning actual knowledge. We reverse the trial court\u2019s decision concerning written notice. The judgment is reversed and the cause remanded for further proceedings consistent with this opinion.\nIt is so ordered.\nSUTIN and LOPEZ, JJ., concur.", "type": "majority", "author": "WOOD, Chief Judge." } ], "attorneys": [ "Scotty N. Oliver, Hannett, Hannett, Cornish & Barnhart, Albuquerque, for plaintiff-appellant.", "Peter G. Prina, Gene C. Walton, Rodey, Dickason, Sloan, Akin & Robb, Albuquerque, for defendants-appellees." ], "corrections": "", "head_matter": "521 P.2d 130\nRobert ANAYA, Plaintiff-Appellant, v. BIG THREE INDUSTRIES, INC., and Highlands Insurance Company, Defendants-Appellees.\nNo. 1286.\nCourt of Appeals of New Mexico.\nMarch 27, 1974.\nScotty N. Oliver, Hannett, Hannett, Cornish & Barnhart, Albuquerque, for plaintiff-appellant.\nPeter G. Prina, Gene C. Walton, Rodey, Dickason, Sloan, Akin & Robb, Albuquerque, for defendants-appellees." }, "file_name": "0168-01", "first_page_order": 198, "last_page_order": 202 }