*1 CORDOVA, Claimant, Nazario Plaintiff- Appellee Cross-Appellant, Municipal ALBUQUERQUE,
CITY OF Cor poration, Employer Insurer, Defend ant-Appellant Cross-Appellee. New Mexico.
Nov.
Rehearing Denied March x-rays
mediately were treated and treatment orthopedic surgeon. until he returned two weeks July 27, work on *2 salary paid full dur- was He ing the two he did work. continued work for defendant from December, 1959, through although he Zuris, Stanley Horan, P. complained pain L. of as- Frank to his James Glass, Al- Parmelee, Jr., N. foreman, Charles during and sociates L. appellant. for buquerque, discharged was A. Arledge, Lorenzo Cha- F. Deacon R. physically for the reason was unfit ap- Robins, Albuquerque, for vez, Melvin heavy average manual to do labor. His pellee. weekly earnings were which would $62.40 weekly compensation
entitle him to Judge. District C.C. of sum $37.44. by defendant-employer appeal an is This points defendant five raises in its finding dis- claimant a from chief, all brief of can be deter- compensation on this entitled to and abled by question, answering one mined “Was period not to exceed 500 weeks. a for
basis one-year suit barred statute of Compensa- of the limitations Workmen’s is presented under the facts question Law?” tion filed within one claim was whether employer date failed or from year Defendant contends since no latent compensation. pay refused involved, injury was statute show that found facts to run on the run- employed by the defend- ning was not tolled or sus- doing heavy laborer manu- common ant pended. period years, of more than ten a labor
al passed upon court has not pre- January, until the 2nd continuing presented, but there few cise given he terminal Thereafter light which shed on the matter. pay leave sick pay Hathaway v. New compensable injury State Po- while In sustained scope employment lice, 57 N.M. 263 P.2d of his was held within acting July, salary, continued 1959. He was im- claimant’s the 8th on any duties, performance of usual totally and bedfast disabled while he was n filed, suspicious the em- gratui- relieves claim and until his ployer compensation duty making claim filing of the ty not bar the which did payments during period regular em- premature. such - ployment regular wages. Inc., Smith, George v. Miller & In supreme it was the 219 P.2d employer If the is relieved of the filing of a claim conclusion that the court’s pay compensation under such circum- compensation premature when stances, only logical it is to conclude period paid, for a em employee’s obligation to file a suit dur- the claim. ployment, until the date ing period is and the stat- ute limitations thereby tolled. This Spieker Skelly Company, In Oil true where there showing is no 674, 274 P.2d were simi- N.M. facts put circumstances which would respects to the facts of the lar on inju- notice aof case, injury present case. In that ry, thereby obligating him to pay- continue the claimant was compensation ing involved'. (cid:127)compensation *3 in the amount $17.14. Plaintiff did not work from'July his January 26 returned work at On he to July 27, 1959, to paid inju and was employer, and con- usual duties with his weeks; ry time or “I-Time” for two The job previously the tinued to work at same payment wages court found for this two discharged, held when he was until inwas lieu Compen of Workmen’s .although paid April the he was to payment benefits. Such gra sation was á (cid:127)on which filed. It was held that suit was tuity and not did toll the statute of limita go when the doctor released the workman to for that Hathaway tions New “cured,” back to work Police, supra. State n entitledto accept such statement Plaintiff was lay.-off on- a be relieved to continue com- status and-continued to pensation payments. It that followed n receive regular wages April- 8, his discharge prema- days suit two 1960, in the form accrued .of sick-leave and ture. payment benefits. vacation was for prior apparent rendered to discharge court rec services his is thus due, and, previous employ earfted at the that a return to timé of his ognizes if discharge. fact that such regular wages for payment of sum ment and X-rays not toll taken after the accident of months over con- we showed chronic of limitations. osteo-arthritic condition the statute long run standing, to began had resulted clude that lipping or spurring the vertebrae. again X-rays to immediately prior when it to his dis- September charge was filed later run. Suit showed limitation. same condition aggra- well within with no evidence of vation of his condition as result of first com trial found the court accident, although there was some conflict pensation was due medical testimony point. on this due from the first We hold expert One medical go released him to January 2, to work two weeks after the acci- cross-appeal issue takes expert dent. The next examining testi- finding of court the trial 35% that capable doing fied he was some- disability partial and contends thing other than manual labor. disability. suffering judge trial must consider all C, 59-10-12.1, A and subds. Sections the evidence and reasonable inferenc N.M.S.A., Comp., are 59-10-18.3 A es to be deduced review therefrom. N.M., fully discussed Batte v. the evidence determina discloses ability sup earning tion of reduction in contends to work he is unable at Plaintiff ported by evidence, finding and such type of manual labor in which he was be disturbed. prior to the accident and engaged because foregoing, judgment From education, inability speak age, is affirmed lower etc., absolutely earning no English, has provide be corrected ability. payments begin on January evidence shows worked job after the accident for sev- Attorneys’ this court fees $750.00' *4 previous salary. eral After allowed. discharge, because of in classification IS SO second IT ORDERED. different orthopedist him, who examined he had not COMPTON, CARMODY, he had not J., testified tried J.,
worked. C. find work. concur.
495 however, Rehearing. Motion in my feeling view of with re- gard to the denial of for re- the motion Rehearing denied. hearing, my opinion concurrence in the hereby withdrawn and shall be considered CARMODY, (dissenting). Justice special only. concurrence the result in the initially I concurred Although It should also be dilemma noted opinion prepared by Judge with which particular we are faced 1, 1962, I filed on November which was case probably again, in view occur rehearing that the motion for agree cannot recent amendment to summarily. be denied Rule is to be effective opinion that decision I am of the 1963 (to appear as 21-2-1 (8), N.M. (18) § contrary to probably announced herein S.A.1953, 1963 Supp.). Pocket County, 57 N. v. Bernalillo Sanchez 909; v. White 257 Lucero
M. P.2d Stores, P.2d 60 N.M.
Auto
Cooper,
and Yardman v.
I
not believe that
I rule may perhaps properly be de- motion participating two of three
nied when apparently signify.
justices so State, Flaska from the rule of
follow 51 N.M. agree that the motion for I rehear- operation law;
ing will stand denied