*1 38
487 P.2d Petitioner, DURAN, D.
Manuel COMPANY, ZINC NEW JERSEY
The Respondent. 9286.
No.
Supreme Mexico. New Court
Aug. 9, 1971. Reynolds, City, Robertson & Silver for
petitioner. Riordan, Weinbrenner,
R. E. Neil E. Las Cruces, respondent. for OPINION STEPHENSON, Justice. compensation is a case This workmen’s judgment entered was, appeal for the claimant which on reversed and re- manded with instructions to dismiss complaint grounds on the the claim timely was not filed. Section 59-10-13.6 N.M.S.A., (Laws (A), (Supp.1969) 1963, 1959, 67, 10; amended, ch. Laws ch. § 151, 1) and Laws Duran ch. § § Jersey Company, N.M. v. The New Zinc (Ct.App.1971). We certiorari, the Court of granted reverse judg- Appeals and the trial court’s affirm ment. period does not limitations to run it becomes reason
commence reasonably ably apparent, or should become an apparent, to the that he has workman compen injury for which entitled to he is Drilling Com Young sation. Noland (Ct.App. pany, 79 N.M. 1968). as a fact that:
The trial court found plaintiff physicians “All treated the who for described here- accidental return his full released employment become It did not duties. and should not have become apparent he had an in- plaintiff that jury he would have account of which Compensa- entitled Workmen’s benefits.” tion *2 opin Appeals injured in its The Court of workman that he a compensa- had apparent to says reasonably it injury, ion that was ble period the of limitations had partially disabled expired. Here, the claimant that he therefore ignoring the sub- 4, 1964, January and the date that rule, stantial evidence it has weighed the injury. after his first he returned to work evidence and reversed. statement, making In the court has this Finally, court, the in speaking of the trial to an uneducated laborer attributed finding court’s quoted, says we have body ap knowledge of the which human that there is a lack of evidence that claim-
parently possessed by the transcends upon ant relied the doctor’s In statements.. physician. attending It has succumbed to accordance with our substantial evidence weighing the vice of the evidence. rule, reliance, such consequential, if it be is easily The doctor treated claimant and who the support inferred in of the trial him, performed operations on on each finding two court’s judgment. and The infer- of he occasion was the view that could ence following, arises from the fact that by required perform with, thereafter duties the and in accordance the doctor’s state- ments, regular employment. not his It was the claimant in fact twice return September physician of 1968that claimant’s to his duties. lightened.
felt that his should be workload The decision Appeals of the Court of is testified, The claimant inter reversed alia: and is the directed to give reinstate and full force and effect to good feel too I didn’t but the doctor judgment. its keep company telling and it the years years takes about It two three is so ordered.
before
can feel
in
arm
normal
”
**
just kept working,
so I
COMPTON,
J.,
McMANUS,
C.
and
and
MONTOYA, JJ., concur.
is
support
There
evidence to
substantial
quoted finding.
the trial court’s
OMAN,
(dissenting).
“*
**
Justice
are bound to view the
[W]e
by
majority opinion
As shown
the
evidence,
and
together with all
inferences
opinion
the
of
Appeals,
the Court of
the de-
reasonably
therefrom,
the
deducible
in
question
reasonably
cisive
when became
support
most favorable to
the find-
apparent,
or should have become
ings. All
the
evidence unfavorable to
apparent,
plaintiff
to
that he was unable to
findings
un-
disregarded
be
and no
must
perform
percentage-extent
some
favorable
be
inferences will
drawn.”
performing
in
usual tasks
he was
Oberman,
the work
472, 483
Oberman v.
82 N.M.
at the
of
injury
his
and was unable
(1971).
P.2d 1312
percentage-extent
perform
to some
The rule is the
in
same workmen’s com
by
for
age,
work
which he
fitted
educa-
pensation
Baking
cases.
Irvin v. Rainbo
tion, training, general physical and mental
Company, 76 N.M.
Under these whether he ap- testifying truthfully falsely, supported under law he could not be .or h,e shpuld plicable by testimony, jurisdictions.. be in most It would un- bound his duly quote rely upon pos- lengthen this all of permitted should dissent not be plaintiff’s testimony upon sible which I base other witnesses contradictions opinion, but following is a portion [*] « [*] [*]
thereof: “Q. Now were these symptoms al-
bothering you work in What shoulder. “Q. difficulty Now what Right up And how was it January was it of ’64? here to the part causing you? bothering went top my body back you? same capacity ways the same from ’63to right accident “ * Always [*] January 8th, the same.” returned to work in the had before this- 1964, is that up to ’68 ? *4 Every every “A. time I I time “A. right. That’s tried — my try stretch pick up out arm to “Q. You machine, went back as a something this whole muscle in here sorry, I’m as a Mechanic #1? just started jingling like a bunch of ants crawling up and Yes, down and it don’t seem “A. sir. get away. put I can’t no tension or “Q. Doing the you same duties that pick up anything [weigh] that way four had before? pounds. that, just five I can feel so I yes. “A. thing, Same can’t nothing. pick do up I noth- can’t
ing. “Q. your But your its feeling operation that you didn’t do “Q. any you pain Did cause when any good? You having are still the same you pick heavy tried to up objects? your trouble with arm? does, “A. It right. “A. That’s “Q. you Did pain it cause then? “Q. you you And only felt that could “A. Yes. light do work? “Q. you Now your job? how do right. “A. That’s you How did your do work? this, “Q. you And the doctor had told “A. Well I had to do it the best you say? could. Sometimes I used to work with slip. gave light duty He “A. me a my hand, arm, left left more than the right and pain there on that arm. “Q. you duty light But ? went back I would let it rest a kept go- while and I They company “A. wouldn’t —the ing way.- the same crippled I was in-this give wouldn’t me that. arm ever since then. “Q. go du- You did back to the same “Q. your Did fellow employees, the ty? people other working you were with you try help any out ? work, yes. “A. The same n “A. They did.” “Q. got'better, your-arm never
did it? the doctors that duty back in ’64-?'- “A. “Q. duty slip and I turned it into'the Now did I did. .As a matter of I went to ever they gave request light fact, all “Q. “ [*] “A. No.” right? [*] But that arm [*] - j .... never got well, they office and company have told the got My -arm “A. It never left well. They it, it. accept .though.” don’t I did 'one most of the work with. Its in They slip. black gave me difficulty “A. you had
“Q. All this and white. right . ? arm with way all the was the case “Q. And this right shoulder. “A. The ’65, ’66, and ’68? ’67 through right shoulder ? “Q. The Certainly. “A. “A. Yes. period ? through that way theAll your right arm? “Q. Not doctor, went Each time I yes.” right shoulder. “A. The reasons, I re- foregoing stated For gave right, but it never All spectfully dissent. went on into peace from ’63 January of 1968 is operation
for the Yes, right.” that’s
“ [*] [*] today your is the problem “Q. And right you say
right arm and right itas was now shoulder is same *5 Plaintiff-Appellee, Mexico, of New STATE the accident of November Defendant-Appellant. MOSS, Jack right. “A. That’s 662. No. from And all this Appeals of Mexico. New light requested have October July 30, 1971. always you? refused and was work light requested work and “A. I have the doctors all recommended
it was gone to. your you what told
“Q. The doctors you discussed was and
condition these one of doc- with each
condition
tors, not?
“A. No.
“Q. Sir? that?
“A. How of these one to each
"Q. You talked you? wrong with What was
doctors? did. Certainly. I sure
“A. what told they
wrong? Right. go you would times at all
“Q. So you what tell they would doctors
these
they found? wrong. just They what tell nothing it. do
They can’t duty? get you go
“Q. Then did