A. Any worker claiming to be entitled to compensation from any employer shall give notice in writing to his employer of the accident within fifteen days after the worker knew, or should have known, of its occurrence, unless, by reason of his injury or some other cause beyond his control, the worker 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 days after the occurrence of the accident. 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.
B. Each employer shall post, and keep posted in conspicuous places upon his premises where notices to employees and applicants for employment are customarily posted, a notice that advises workers of the requirement specified in Subsection A of this section to give the employer notice in writing of an accident within fifteen days of its occurrence. The notice shall be prepared or approved by the director. The failure of an employer to post the notice required in this subsection shall toll the time a worker has to give the notice in writing specified in Subsection A of this section up to but no longer than the maximum sixty-day period.
C. The notice required in Subsection B of this section shall include as an attachment to it a preprinted form, which shall be approved by the director, that allows the worker to note and briefly describe the accident and sign his name. The employer, any superintendent or foreman, or any agent of the employer in charge of the work where the accident occurred shall also sign the preprinted form that describes the accident. That signature shall not be a concession by the employer of any rights or defenses. It merely acknowledges receipt by the employer or his agent of the form signed by the worker. The preprinted form shall be prepared in duplicate so that both the worker and the employer can retain copies.
History: 1953 Comp., § 59-10-13.4, enacted by Laws 1959, ch. 67, § 8; 1989, ch. 263, § 19; 1990 (2nd S.S.), ch. 2, § 16.
ANNOTATIONSThe 1990 (2nd S.S.) amendment, effective January 1, 1991, rewrote the catchline; substituted "of the accident within fifteen days after the worker knew, or should have known, of its occurrence" for "of the accident and of the injury within thirty days after their occurrence" in the first sentence in Subsection A; and added Subsections B and C.
I. GENERAL CONSIDERATION.
Failure to give notice not jurisdictional question. — Under this section when the question of notice is not raised in the trial court and since failure to give notice does not present a jurisdictional question, the question cannot be raised in the supreme court for the first time. Alspaugh v. Mountain States Mut. Cas. Co., 1959-NMSC-057, 66 N.M. 126, 343 P.2d 697.
The provision found in this section is a mandatory requirement upon which the right of action rests, and not a mere formality to be lightly put aside. Ogletree v. Jones, 1940-NMSC-062, 44 N.M. 567, 106 P.2d 302, overruled on other grounds by Yardman v. Cooper, 1959-NMSC-043, 65 N.M. 450, 339 P.2d 473; Montell v. Orndorff, 1960-NMSC-063, 67 N.M. 156, 353 P.2d 680; Herndon v. Albuquerque Pub. Schs., 1978-NMCA-072, 92 N.M. 635, 593 P.2d 470, rev'd on other grounds, 1978-NMSC-090, 92 N.M. 287, 587 P.2d 434.
Right to recover which is dependent on finding that the requirements of the section have been met cannot stand in the absence of such a finding. Geeslin v. Goodno, Inc., 1965-NMSC-053, 75 N.M. 174, 402 P.2d 156.
Finding of compliance is necessary in order to support judgment for the workman (worker), particularly where a request for a contrary finding has been made. Geeslin v. Goodno, Inc., 1965-NMSC-053, 75 N.M. 174, 402 P.2d 156.
Proof of notice not essential for liability. — Proof of notice in a workmen's (workers') compensation case is not essential to establish liability. It is an affirmative defense asserted by the employer, which the employer must prove. Mosher v. Bituminous Ins. Co., 1981-NMCA-102, 96 N.M. 674, 634 P.2d 696.
Section protects the employer, giving him notice so that he may investigate the facts and circumstances and question witnesses and is intended to prevent the filing of fictitious claims where lack of time makes proof of genuineness difficult. Herndon v. Albuquerque Pub. Schs., 1978-NMCA-072, 92 N.M. 635, 593 P.2d 470, rev'd on other grounds, 1978-NMSC-090, 92 N.M. 287, 587 P.2d 434.
Effect on action against Subsequent Injury Fund. — When a worker is barred for lack of notice from bringing an action against the worker's employer, an action against the Subsequent Injury Fund is also barred. Jimerson v. Arapahoe Drilling, 1988-NMCA-097, 107 N.M. 716, 764 P.2d 143.
When the act speaks of the occurrence of injury or the occurrence of the hernia, it refers to compensable injuries and these occur when disability appears - in other words, when the injury or hernia becomes manifest. Montell v. Orndorff, 1960-NMSC-063, 67 N.M. 156, 353 P.2d 680.
No filing of suit until 31 days elapsed from failure to pay. — Section 52-1-30 NMSA 1978 bars the filing of suit until 31 (now 14) days have elapsed from such failure or refusal to pay. Swallows v. City of Albuquerque, 1955-NMSC-042, 59 N.M. 328, 284 P.2d 216, aff'd, 1956-NMSC-063, 61 N.M. 265, 298 P.2d 945 (decided under former law).
Time is tolled for beginning of payments until employer is notified pursuant to the act that the employee is claiming compensation resulting from the accident. Swallows v. City of Albuquerque, 1955-NMSC-042, 59 N.M. 328, 284 P.2d 216, aff'd, 1956-NMSC-063, 61 N.M. 265, 298 P.2d 945 (decided under former law).
Statute of limitations is not tolled for minor dependent, nor where it has run on the workman (worker) may it be revived in favor of the children at the workman's (worker's) death, and the claimant must bring himself strictly within the limitations. Thus, the claim is lost by failure to file as provided by statute. Employers Mut. Liab. Ins. Co. v. Jarde, 1963-NMSC-215, 73 N.M. 371, 388 P.2d 382.
It is trial court that resolves conflicts, even where evidence on question of latent injury is conflicting. Hammond v. Kersey, 1972-NMCA-003, 83 N.M. 430, 492 P.2d 1293.
Timely filing question of fact. — The authorities are well nigh unanimous that whether a claim for compensation was timely filed or whether good cause exists for the delay in filing are ordinarily questions of fact, and may become questions of law only where the facts are not in dispute. Buffington v. Continental Cas. Co., 1961-NMSC-179, 69 N.M. 365, 367 P.2d 539.
Finding of fact regarding notice intermingled with conclusion of law. — In workmen's (workers') compensation case involving notice under 59-10-13, 1953 Comp. (now repealed), where there was no specific finding by trial court under the "finding of fact" concerning notice of a compensable injury, but where one of the conclusions of law read in part that plaintiff did not give the defendant notice of a compensable injury within the time and manner provided by law, that portion of the conclusion was a finding of ultimate fact although intermingled with the conclusion of law. Clark v. Duval Corp., 1971-NMCA-091, 82 N.M. 720, 487 P.2d 148.
Supreme court views trial court's judgment in most favorable light. — In a workmen compensation action, the supreme court is required to view the judgment of the trial court in its most favorable light. Waymire v. Signal Oil Field Serv., Inc., 1966-NMSC-270, 77 N.M. 297, 422 P.2d 34.
Judgment reversed where suit prematurely filed. — Where it is clear that the suit was prematurely filed, the judgment for the claimant will be reversed and the cause remanded with instruction to dismiss his claim. Swallows v. City of Albuquerque, 1955-NMSC-042, 59 N.M. 328, 284 P.2d 216, aff'd, 1956-NMSC-063, 61 N.M. 265, 298 P.2d 945 (decided under former law).
Where employee returned to work after notice of injury. — Where employer had notice of the accident and a compensable injury, the fact that the employee came back to work, but was later discharged, did not as a matter of law establish that there was no right to continuing compensation, but rather that the question was properly for the jury. Roberson v. Powell, 1967-NMSC-131, 78 N.M. 69, 428 P.2d 471.
Supreme court may increase award of attorney's fees. — In a workmen's (workers') compensation case, where the transcript and extended briefs show that considerable time and effort were expended in the lower court in litigating the issues, and that various depositions were taken by the parties, and the amounts of the medical bills involved and the maximum compensation benefits secured for the claimant are substantial, the supreme court may increase an award of attorney's fees from $1000 to $1500. Waymire v. Signal Oil Field Serv., Inc., 1966-NMSC-270, 77 N.M. 297, 422 P.2d 34.
Because contribution claim is third-party action brought by employer against other employers that may be deemed liable for contribution, the general statute of limitations for contribution actions shall apply. Jouett v. Tom Growney Equip. Co., 2004-NMCA-023, 135 N.M. 136, 85 P.3d 260, cert. granted, 2004-NMCERT-002, 135 N.M. 169, 86 P.3d 48, rev'd, 2005-NMSC-015, 137 N.M. 497, 113 P.3d 320.
II. NOTICE OF ACCIDENT AND INJURY.
Notice is condition to right of workman (worker) to recover compensation. Geeslin v. Goodno, Inc., 1965-NMSC-053, 75 N.M. 174, 402 P.2d 156.
Once notice becomes an issue, the plaintiff has to prove notice in order to obtain a judgment for compensation. Aguilar v. Penasco Indep. Sch. Dist. No. 6, 1984-NMSC-004, 100 N.M. 625, 674 P.2d 515.
Once notice is put in issue, the worker must prove compliance with the statutory requirement. Nunez v. Smith's Mgmt. Corp., 1988-NMCA-109, 108 N.M. 186, 769 P.2d 99.
Notice as required by statute is condition precedent to the right to plaintiff to recover compensation. Sanchez v. Azotea Contractors, 1973-NMCA-039, 84 N.M. 764, 508 P.2d 34.
Cannot recover where failure to comply with mandatory wording. — Where appellee was required to stop working in May of 1960 and was hospitalized for a week for dermatitis, in June of 1960 appellee sought help from the state labor commission in order to secure compensation for his dermatitis, appellee knew of his condition and was not in conformity with this section and appellee cannot recover for this condition because of his failure to comply with the mandatory words of this section. Sanchez v. James H. Rhodes & Co., 1964-NMSC-063, 74 N.M. 112, 391 P.2d 336.
Failure to notify as bar to recovery. — Present knowledge of injury to shoulder entitling claimant to compensation, and known to him during four months or more when he was without work because of the condition, but at no time communicated to employer, was in fact and law a failure to timely comply with the provisions of this section and barred recovery under Section 52-1-31 NMSA 1978. Roberson v. Powell, 1967-NMSC-131, 78 N.M. 69, 428 P.2d 471.
If plaintiff gave no notice as required by this section or failed to file his claim within one year after relator failed or refused to pay compensation as required by this section, all of plaintiff's "claim for the recovery of compensation, all his right to the recovery of compensation and the bringing of any legal proceeding for the recovery of compensation" would be barred and the same is true if the case was prematurely filed. State ex rel. Kermac Nuclear Fuels Corp. v. Larrazolo, 1962-NMSC-134, 70 N.M. 475, 375 P.2d 118.
The failure to give notice within the allotted time is a conclusive bar to any suit for compensation where plaintiff was timely advised by the treating physician that he had suffered a left direct inguinal hernia. Michael v. Bauman, 1966-NMSC-079, 76 N.M. 225, 413 P.2d 888.
Reason for notice to employer of accident or injury sustained by an employee is to enable the employer to examine into the facts while they are accessible and also to employ skilled physicians or surgeons to care for the employee so as to speed his recovery and protect himself against simulated or exaggerated claims. Lozano v. Archer, 1962-NMSC-164, 71 N.M. 175, 376 P.2d 963.
Purpose of the notice requirement. — The purpose of the notice requirement is (1) to enable the employer to investigate the accident while the facts are accessible and (2) if necessary, to employ doctors to speed recovery. Beckwith v. Cactus Drilling Corp., 1972-NMCA-168, 84 N.M. 565, 505 P.2d 1241, cert. denied, 84 N.M. 560, 505 P.2d 1236 (1973).
Purpose of notice requirement of this section is to enable the employer to investigate the facts while they are accessible and, if necessary, to employ doctors so as to speed recovery. Another purpose of the notice requirement is to allow the employer to protect himself against simulated or aggravated claims. Clark v. Duval Corp., 1971-NMCA-091, 82 N.M. 720, 487 P.2d 148.
Purpose of the notice provision of the section is to allow the employer, or its insurance company, to investigate the accident. Collins v. Big Four Paving, Inc., 1967-NMSC-019, 77 N.M. 380, 423 P.2d 418.
The purpose of this section is to enable the employer to investigate the facts and circumstances in order to protect against fictitious, simulated, or aggravated claims, and, if necessary, to allow the employer to provide medical care for the employee so as to speed his recovery. Martinez v. Darby Constr. Co., 1989-NMSC-069, 109 N.M. 146, 782 P.2d 904.
Primary purpose of requiring employee to give written notice is to enable the employer to investigate the facts while they are accessible and, if necessary, to employ doctors so as to speed recovery. Waymire v. Signal Oil Field Serv., Inc., 1966-NMSC-270, 77 N.M. 297, 422 P.2d 34.
Aspect of notice to employer involved is notice of accident. Ortiz v. Ortiz & Torres Dri-Wall Co., 1972-NMCA-005, 83 N.M. 452, 493 P.2d 418.
This section requires notice of accident as well as notice of injury. Bell v. Kenneth P. Thompson Co., 1966-NMSC-117, 76 N.M. 420, 415 P.2d 546.
Notice of accident, not notice of compensable injury. — In workmen's (workers') compensation case, where employer admittedly had knowledge of plaintiff's accident arising out of the course of his employment, and of a "no lost time" injury where medical attention was provided by the employer, the only question being whether the employer had knowledge of a "compensable" injury, employer could not be said to have such knowledge as a matter of law where there was evidence that defendants had no knowledge of facts indicating additional medical attention was necessary and that defendants had no knowledge of the fact that plaintiff considered his claim to be compensable. Clark v. Duval Corp., 1971-NMCA-091, 82 N.M. 720, 487 P.2d 148.
Applicability of provision for written notice. — The provision for written notice in Subsection A of this section also applies to the substitute provision for actual knowledge in Subsection B (now also in Subsection A). Herndon v. Albuquerque Pub. Schs., 1978-NMCA-072, 92 N.M. 635, 593 P.2d 470, rev'd on other grounds, 1978-NMSC-090, 92 N.M. 287, 587 P.2d 434.
Time, place and cause of injury must be definite and certain. — With reference to the date of the accident, the time, place and cause of the injury must be definite and certain to determine whether the employer had written notice or actual knowledge of the accident after its occurrence pursuant to this section. Herndon v. Albuquerque Pub. Schs., 1978-NMCA-072, 92 N.M. 635, 593 P.2d 470, rev'd on other grounds, 1978-NMSC-090, 92 N.M. 287, 587 P.2d 434.
Determination of whether an employer had actual knowledge is made from a consideration of the totality of the facts and circumstances. Powers v. Riccobene Masonry Constr., Inc., 1980-NMCA-172, 97 N.M. 20, 636 P.2d 291, cert. denied, 99 N.M. 148, 655 P.2d 160, overruled on other grounds by Gonzales v. Stanke-Brown & Assocs., 1982-NMCA-109, 98 N.M. 379, 648 P.2d 1192.
Actual knowledge by employer of accident does not excuse giving of written notice. Rather, the knowledge must be of an accident and compensable injury. Roberson v. Powell, 1967-NMSC-131, 78 N.M. 69, 428 P.2d 471.
To avoid the requirement of written notice only actual knowledge of the accident is required; however, such actual knowledge must be acquired within the time provided for giving written notice. Anaya v. Big Three Indus., Inc., 1974-NMCA-027, 86 N.M. 168, 521 P.2d 130.
Although notice need not be pleaded in first instance in order to state a cause of action, when placed in issue, proof of compliance with this section must be present in order to support a judgment for a workman (worker). Geeslin v. Goodno, Inc., 1965-NMSC-053, 75 N.M. 174, 402 P.2d 156.
Reasons for lateness in both notice and claim. — This law does not expect the impossible of the employee, lateness of both notice and claim may be excused for various reasons, including the following: impossibility of knowing that an apparently minor accident would later develop into a compensable injury; reasonable inability to recognize a disease or disabling condition in an early or latent state; medical opinion that the injury is not serious or is nonindustrial; voluntary payment of benefits by the employer, or assurances that the employee will be taken care of, inducing the employee to refrain from making claim; and disability preventing the making of the claim, due to mental or physical incapacity, minority and the like. Montell v. Orndorff, 1960-NMSC-063, 67 N.M. 156, 353 P.2d 680.
Notice issue not litigated where first raised in opening statement. — Trial court did not abuse its discretion in refusing to allow employer to litigate the issue of whether employee gave notice of an alleged accident where employer first raised the issue in its opening statement and where employee would have been prejudiced either by its inclusion as an issue in the case or by another continuance. Beyale v. Arizona Pub. Serv. Co., 1986-NMCA-071, 105 N.M. 112, 729 P.2d 1366, cert. denied, 105 N.M. 111, 729 P.2d 1365.
For purposes of notice to the employer, actual disability is not required but only that the claimant has knowledge, or with the exercise of reasonable diligence should have knowledge, that more likely than not he is impaired and unable, at least to some percentage extent, to perform work for which he is suited. Martinez v. Darby Constr. Co., 1989-NMSC-069, 109 N.M. 146, 782 P.2d 904.
In case of latent injury workman (worker) must give notice but only after he knew, or should have known by the exercise of reasonable diligence, that he had incurred a compensable injury by accident arising out of and in the course of his employment. Brown v. Safeway Stores, Inc., 1970-NMCA-132, 82 N.M. 424, 483 P.2d 305; Powers v. Riccobene Masonry Constr., Inc., 1980-NMCA-172, 97 N.M. 20, 636 P.2d 291, cert. denied, 99 N.M. 148, 655 P.2d 160, overruled on other grounds by Gonzales v. Stanke-Brown & Assocs., 1982-NMCA-109, 98 N.M. 379, 648 P.2d 1192.
Where an employee's injury resulted from an internal degeneration of a body part rather than an external incident, he could not have been expected to give notice until after the injury manifested itself. Powers v. Riccobene Masonry Constr., Inc., 1980-NMCA-172, 97 N.M. 20, 636 P.2d 291, cert. denied, 99 N.M. 148, 655 P.2d 160, overruled on other grounds by Gonzales v. Stanke-Brown & Assocs., 1982-NMCA-109, 98 N.M. 379, 648 P.2d 1192.
The provision of Subsection A, as amended effective January 1, 1991, allows notice of all latent injuries within fifteen days after the worker knew or should have known, by the exercise of reasonable diligence, that he had a compensable injury. Garnsey v. Concrete Inc., 1996-NMCA-081, 122 N.M. 195, 922 P.2d 577, cert. denied, 122 N.M. 112, 921 P.2d 308.
If claimant's injury was latent, notice requirements would apply only after he knew, or should have known by the exercise of reasonable diligence, that he had incurred a compensable injury. Hammond v. Kersey, 1972-NMCA-003, 83 N.M. 430, 492 P.2d 1293.
Post-traumatic stress disorder is latent injury. — Where worker was employed at a housing and treatment center for mentally and physically disabled persons; worker was sexually assaulted by a patient who threatened to hurt worker if worker reported the assault; because of fear and shame, worker did not report the assault until nineteen days after the assault; and undisputed medical evidence established that worker's fear, shame and trauma prevented worker from reporting the assault, there was sufficient evidence to support a finding that worker's post-traumatic stress disorder prevented worker from reporting the assault within the statutory time period. Baca v. Los Lunas Cmty. Programs, 2011-NMCA-008, 149 N.M. 198, 246 P.3d 1070.
The time period in which notice of a claim must be given begins when the worker recognizes or should recognize the "nature, seriousness, and probable compensable character of the injury." Therefore, in the case of a latent injury, the worker must give notice only after he knows or should know, by exercise of reasonable diligence, that he incurred a compensable injury. Substantial evidence does not support the judge's decision that claimant knew or should have known he had a compensable injury prior to the time he was first diagnosed with post-traumatic stress disorder. Flint v. Town of Bernalillo, 1994-NMCA-078, 118 N.M. 65, 878 P.2d 1014, cert. denied, 118 N.M. 178, 879 P.2d 1197.
Law in effect at time latent injury discovered controls. — Because claimant was first apprised that he suffered from post-traumatic stress disorder following the diagnosis made in 1991, even though the event that triggered it happened in 1986, the 1991 statutory notice provisions govern claimant's obligation to give notice in the instant case. Flint v. Town of Bernalillo, 1994-NMCA-078, 118 N.M. 65, 878 P.2d 1014, cert. denied, 118 N.M. 178, 879 P.2d 1197.
Claimant not relieved of timely filing where does not know full extent of injury. — The mere fact that a claimant, from a medical standpoint, does not know the full extent of his injury does not relieve him from timely filing his claim for workmen's (workers') compensation. Letteau v. Reynolds Elec. & Eng'g Co., 1955-NMSC-103, 60 N.M. 234, 290 P.2d 1072 (decided under former law).
Notice in casual conversation is insufficient. Bolton v. Murdock, 1957-NMSC-019, 62 N.M. 211, 307 P.2d 794 (decided under former law).
Casual conversation short of notice. — Where the only evidence of notice was the casual conversation between the appellant and the supervisor, the facts fall short of the evidence necessary to support a claim that notice existed. Simmons v. International Minerals & Chem. Corp., 1966-NMSC-220, 77 N.M. 100, 419 P.2d 756.
Where there was failure to make finding on notice issue, cause must be remanded to the trial court. Geeslin v. Goodno, Inc., 1965-NMSC-053, 75 N.M. 174, 402 P.2d 156.
Time for notice or claim does not begin to run until the claimant, as a reasonable man, should recognize the nature, seriousness and probable compensable character of his injury or disease. Montell v. Orndorff, 1960-NMSC-063, 67 N.M. 156, 353 P.2d 680.
Time for notice. — Time for giving notice begins to run when employee knows, or by the exercise of reasonable diligence should know, that he has sustained an injury by accident in the course of his employment. Bell v. Kenneth P. Thompson Co., 1966-NMSC-117, 76 N.M. 420, 415 P.2d 546; Powers v. Riccobene Masonry Constr., Inc., 1980-NMCA-172, 97 N.M. 20, 636 P.2d 291, cert. denied, 99 N.M. 148, 655 P.2d 160, overruled on other grounds by Gonzales v. Stanke-Brown & Assocs., 1982-NMCA-109, 98 N.M. 379, 648 P.2d 1192; Martinez v. Darby Constr. Co., 1989-NMSC-069, 109 N.M. 146, 782 P.2d 904.
Where a claimant returned to work two days after an accident and worked for nearly a month and a half before pain prevented him from returning to work on a regular basis, it was at this later date that the claimant realized for the first time he had suffered a compensable injury; the claimant's belief in this regard is within the bounds of reason. Gomez v. B.E. Harvey Gin Corp., 1990-NMSC-057, 110 N.M. 100, 792 P.2d 1143.
Period limited for this notice begins to run from the time the workman (worker) knows, or should know by the exercise of reasonable diligence, that he has sustained injury by accident in the course of his employment. Anaya v. Big Three Indus., Inc., 1974-NMCA-027, 86 N.M. 168, 521 P.2d 130; Langley v. Navajo Freight Lines, 1962-NMSC-018, 70 N.M. 34, 369 P.2d 774.
Period for written notice does not begin to run until plaintiff is charged with knowledge of his compensable injury. Rohrer v. Eidal Int'l, 1968-NMCA-089, 79 N.M. 711, 449 P.2d 81.
Period begins to run. — The period for giving notice for workmen's (workers') compensation begins to run when the claimant knows of his injury. Sanchez v. James H. Rhodes & Co., 1964-NMSC-063, 74 N.M. 112, 391 P.2d 336.
Successive injury. — Where worker initially sustained a non-disabling injury and aggravated the injury through successive employment, the date the worker became disabled was the date of the worker's accidental injury, and the worker was required to give notice of the injury to the successive employer within fifteen days after the worker became disabled from working. Tom Growney Equip. Co. v. Jouett, 2005-NMSC-015, 137 N.M. 497, 113 P.3d 320.
Verbal report satisfies requirement of notice. — The supreme court is committed to the doctrine that the verbal reporting of the accident and injury to the employer or his agent satisfies the requirement of written notice or actual notice in the section. Baca v. Swift & Co., 1964-NMSC-104, 74 N.M. 211, 392 P.2d 407.
Insufficient notice where does not state where or when accident happened. — Where the written notice stated the nature of the injury and listed the cause of injury as "the lifting of heavy objects in the course of employment," but did not state where or when the accident was supposed to have happened, the notice contained no reference from which the accident could be identified and was insufficient. Bell v. Kenneth P. Thompson Co., 1966-NMSC-117, 76 N.M. 420, 415 P.2d 546.
Delay in notice reasonable where only surgeon made connection between pain and injury. — Where, in addition to plaintiff's testimony that he did not realize the connection between his leg problem and the industrial accident until after five months, there was medical testimony that it is not uncommon for a patient suffering a leg problem like plaintiff's to fail to connect the leg pain with a back injury and in fact several experienced doctors failed to make the connection while treating plaintiff, as the only person who reasonably should have made the connection between the two was an orthopedic surgeon, the court's holding that plaintiff's delay in notifying his employer was reasonable was supported by substantial evidence. Brown v. Safeway Stores, Inc., 1970-NMCA-132, 82 N.M. 424, 483 P.2d 305.
Written notice to defendants' insurance carrier by plaintiff's doctor was sufficient compliance with the statutory notice requirements. Moorhead v. Gray Ranch Co., 1977-NMCA-017, 90 N.M. 220, 561 P.2d 493, cert. denied, 90 N.M. 254, 561 P.2d 1347.
Oral notice to company doctor not sufficient. — A company doctor, not shown to be in a position of authority, is not an employer, superintendent, foreman or other agent in charge of the work in connection with which the disablement was occasioned, and therefore oral notice to the company doctor was insufficient. Sanchez v. Azotea Contractors, 1973-NMCA-039, 84 N.M. 764, 508 P.2d 34.
Hospital not estopped from claiming lack of notice in treating own employee's injury. — In action by cook at state hospital for workmen's (workers') compensation benefits, the trial court did not err in refusing to conclude that hospital was estopped from claiming lack of notice on the basis of evidence that the treatment room clerk at the state hospital failed to make reports of appellant's treatments by the staff physician, and the supervisors' failure to make an accident report of the accident and injury, where the staff physician was authorized to treat employees for nonemployment-connected ailments as well as for on-the-job injuries. Higgins v. Board of Dirs. of N.M. State Hosp., 1964-NMSC-034, 73 N.M. 502, 389 P.2d 616.
Statement of claim or group insurance form as written notice. — Statement of claim, or group insurance form, describing claimant's injury and showing that it arose out of his employment and signed by employer's terminal manager, constituted written notice to employer of the injury. Langley v. Navajo Freight Lines, 1962-NMSC-018, 70 N.M. 34, 369 P.2d 774.
Log notation not sufficient as written notice. — Where the log for December 15 reported "plaintiff injured back," the log was delivered to the employer, and apart from the notation in the log, the employer had no knowledge concerning the incident until April 28, 1970, log notation did not suffice as written notice. Hammond v. Kersey, 1972-NMCA-003, 83 N.M. 430, 492 P.2d 1293.
Insurance adjuster as agent of employer in receiving notice. — Insurance adjuster's trial testimony, that he had acted for the employer in connection with a prior injury of plaintiff-employee and was acting for the employer in receiving the written notice in this case, is substantial evidence of his agency and constitutes the receipt of written notice by the employer. Anaya v. Big Three Indus., Inc., 1974-NMCA-027, 86 N.M. 168, 521 P.2d 130.
III. ACTUAL KNOWLEDGE.
Actual knowledge of accident or injury means knowledge of a compensable injury and involves more than the mere happening of an accident. Baca v. Swift & Co., 1964-NMSC-104, 74 N.M. 211, 392 P.2d 407.
Actual knowledge of accident as contemplated by the act means actual knowledge of a compensable injury. In latent injury cases the workman (worker) is not entitled to compensation, nor can there be a failure or refusal to pay until the injury becomes apparent. Swallows v. City of Albuquerque, 1955-NMSC-042, 59 N.M. 328, 284 P.2d 216, aff'd, 1956-NMSC-063, 61 N.M. 265, 298 P.2d 945 (decided under former law).
"Actual knowledge" does not mean first-hand knowledge under the section, but only "knowledge" as the word is used in common parlance. It is knowledge sufficient to impress a reasonable man, i.e., knowledge obtained in the daily affairs of life, but not absolute certainty. Collins v. Big Four Paving, Inc., 1967-NMSC-019, 77 N.M. 380, 423 P.2d 418.
To constitute "actual knowledge," which will excuse giving of "notice in writing," there must be knowledge on the part of the employer, or a superintendent, foreman or other agent in charge of the work in connection with which the accident occurred, that an accident has occurred, and this must be accompanied by knowledge of a compensable injury. Smith v. State, 1968-NMCA-013, 79 N.M. 25, 439 P.2d 242.
"Actual knowledge" which would serve to excuse written notice is not conferred by a verbal statement to the employer at least 13 days after the claimed accident giving rise to the injury. Scott v. Gen. Equip. Co., 1964-NMSC-056, 74 N.M. 73, 390 P.2d 660.
Only actual knowledge of accident required to avoid written notice. — Since 1959, the statutory notice provision has not required actual knowledge of injury to avoid the requirement of written notice; only actual knowledge of the accident is required. Beckwith v. Cactus Drilling Corp., 1972-NMCA-168, 84 N.M. 565, 505 P.2d 1241, cert. denied, 84 N.M. 560, 505 P.2d 1236.
Knowledge which employer must have to excuse formal notice is of compensable injury. Roberson v. Powell, 1967-NMSC-131, 78 N.M. 69, 428 P.2d 471.
Knowledge which will excuse written notice, under this section, must be of an accident and compensable injury. Lyon v. Catron Cnty. Comm'rs, 1969-NMCA-108, 81 N.M. 120, 464 P.2d 410, cert. denied, 81 N.M. 140, 464 P.2d 559 (1970).
Employer's knowledge of worker's heart attack and his hospitalization alone are insufficient to excuse written notice of the worker's work-related injury. To establish that employer or its agents had actual knowledge of worker's work-related injury, worker must show that his employer or its agents had actual knowledge of the worker's employment-related stress which was the accident that caused the worker's heart attack. Grine v. Peabody Natural Res., 2006-NMSC-031, 140 N.M. 30, 139 P.3d 90.
To excuse notice, there must be knowledge of the "occurrence" by a superior in charge of the work. The "occurrence" can mean nothing but the "accident" when considered in the context in which it appears in this section. In this regard the section differs from its form prior to its amendment by Laws 1959, ch. 67, § 8, which changed the word "injury" to "accident" in this section, and the change was a significant one. Wilson v. Navajo Freight Lines, 1964-NMSC-032, 73 N.M. 470, 389 P.2d 594.
To excuse giving of "notice in writing," there must be actual knowledge on the part of the employer, or a superintendent, foreman or other agent in charge of the work in connection with which the accident occurred. This doctrine is stated affirmatively and without exception, and the same rule applies under the Occupational Disease Act. Sanchez v. Azotea Contractors, 1973-NMCA-039, 84 N.M. 764, 508 P.2d 34.
Notice requirement satisfied where defendant had actual knowledge. — Although plaintiff failed to show that a genuine factual issue existed as to when defendant acquired actual knowledge of a compensable injury, the notice requirement was satisfied since defendant had actual knowledge of the accident. On this basis summary judgment for defendant was reversed. Norris v. Amax Chem. Corp., 1973-NMCA-010, 84 N.M. 587, 506 P.2d 93.
As long as plaintiff's employer had actual knowledge of the accident, the notice requirement was complied with; and the record showed there were oral conversations notifying the foreman that the plaintiff had sustained an injury, after which he was put on light work. Moorhead v. Gray Ranch Co., 1977-NMCA-017, 90 N.M. 220, 561 P.2d 493, cert. denied, 90 N.M. 254, 561 P.2d 1347.
Since employers had actual knowledge of employee's two accidents, the notice requirement was satisfied. Thus, defendants' claim of lack of notice of the low back and spine injuries is without merit. Beckwith v. Cactus Drilling Corp., 1972-NMCA-168, 84 N.M. 565, 505 P.2d 1241, cert. denied, 84 N.M. 560, 505 P.2d 1236 (1973).
The employer has actual notice of a job-related accident when he has knowledge of the injury and some knowledge of accompanying facts connecting the injury or illness with the employment, and indicating to a reasonably conscientious manager that the case might involve a potential compensation claim. Herman v. Miners' Hosp., 1991-NMSC-021, 111 N.M. 550, 807 P.2d 734.
Injury to chief executive officer. — When a worker is determined to have actually sustained a work-related injury, and the worker is the president, chief executive officer, and sole stockholder of the employer corporation, the corporation is deemed to have actual knowledge of the accident. Moreno v. Las Cruces Glass & Mirror Co., 1991-NMCA-074, 112 N.M. 693, 818 P.2d 1217.
Notice of accident where employer had actual knowledge. — It was not necessary for the plaintiff to give notice of an injury to his knee or knees after the 1973 accident, but only that he give notice of the accident; notice was given because the defendants had actual knowledge of the 1973 accident, and notice was also given of total disability in 1975. Moorhead v. Gray Ranch Co., 1977-NMCA-017, 90 N.M. 220, 561 P.2d 493, cert. denied, 90 N.M. 254, 561 P.2d 1347.
No need to determine written notice where actual knowledge found. — Where the supreme court concludes that the trial court's finding that employer had actual knowledge of employee's injury is supported by substantial evidence, the supreme court need not determine whether written notice was given. Waymire v. Signal Oil Field Serv., Inc., 1966-NMSC-270, 77 N.M. 297, 422 P.2d 34.
Fact that verbal report had been made was not, in itself, determinative of the question of "actual knowledge" within the meaning of this section. All of the circumstances had to be considered; verbal notice was only one of the circumstances. Gutierrez v. Wellborn Paint Mfg. Co., 1968-NMCA-086, 79 N.M. 676, 448 P.2d 477.
Verbal notice 34 days after accident not actual knowledge. — Where verbal notice is the only circumstance on which the employer can be charged with actual knowledge and this verbal notice was not given until 34 days after the accident, this is insufficient to charge the employer with "actual knowledge." Rohrer v. Eidal Int'l, 1968-NMCA-089, 79 N.M. 711, 449 P.2d 81.
Verbal notice is considered in determining employer's actual knowledge. However, the "verbal notice" is not determinative in and of itself. All the facts and circumstances must be considered, including the promptness of the verbal notice. Rohrer v. Eidal Int'l, 1968-NMCA-089, 79 N.M. 711, 449 P.2d 81.
Verbal report as actual notice. — The verbal reporting of an injury by accident arising out of and in the course of employment to the employer, or to his manager, where manager referred employee to a doctor, satisfies the requirement of "actual knowledge." Lozano v. Archer, 1962-NMSC-164, 71 N.M. 175, 376 P.2d 963; Marez v. Kerr-McGee Nuclear Corp., 1978-NMCA-128, 93 N.M. 9, 595 P.2d 1204, cert. denied, 92 N.M. 532, 591 P.2d 286 (1979).
An oral report of an accident and injury, given by an employee to his supervisor, coupled with ongoing contact with the supervisor regarding the employee's condition, satisfies the requirement of actual knowledge of Subsection B (now included in Subsection A). Mosher v. Bituminous Ins. Co., 1981-NMCA-102, 96 N.M. 674, 634 P.2d 696.
An employer had adequate notice of a compensable injury where the claimant told his supervisor, at the time he was fitted for hearing aids, that his hearing loss was work-related. The statute of limitations (52-1-31 NMSA 1978) was tolled by the employer's subsequent failure to file a report of the accident. Cisneros v. Molycorp, Inc., 1988-NMCA-080, 107 N.M. 788, 765 P.2d 761, cert. denied, 107 N.M. 785, 765 P.2d 758 (decided under pre-1987 version of Section 52-1-58 NMSA 1978).
Notice given or excused in time allotted. — An inquiry concerning "actual knowledge" is relevant only within the time allotted for giving written notice. Specifically, if notice is not given or excused within the time provided by Subsection A of this section, the claim is barred. Rohrer v. Eidal Int'l, 1968-NMCA-089, 79 N.M. 711, 449 P.2d 81.
The actual knowledge in Subsection B (now included in Subsection A) which excuses written notice must have been acquired within the time allotted for the written notice. Norris v. Amax Chem. Corp., 1973-NMCA-010, 84 N.M. 587, 506 P.2d 93.
Totality of facts and circumstances determines actual knowledge. — It is the totality of the facts and circumstances that determines whether the employer has "actual knowledge." Rohrer v. Eidal Int'l, 1968-NMCA-089, 79 N.M. 711, 449 P.2d 81; Herndon v. Albuquerque Pub. Schs., 1978-NMCA-072, 92 N.M. 635, 593 P.2d 470, rev'd on other grounds, 1978-NMSC-090, 92 N.M. 287, 587 P.2d 434; Urioste v. Sideris, 1988-NMCA-096, 107 N.M. 733, 764 P.2d 504.
Employer's accident report manifests acknowledgment of notice. — Where an employer, after having been informed of an accident and injury, makes out a report of the accident and injury, these facts manifest an acknowledgment of notice of the accident and injury. Herndon v. Albuquerque Pub. Schs., 1978-NMCA-072, 92 N.M. 635, 593 P.2d 470, rev'd on other grounds, 1978-NMSC-090, 92 N.M. 287, 587 P.2d 434.
Mere knowledge not actual knowledge. — Where actual knowledge of an accident is a prerequisite to recovery, the employer must know, without making any investigation or inquiry, that an accident happened; mere knowledge of an employer that a claimant injured his back falls short of actual knowledge of an accident. Herndon v. Albuquerque Pub. Schs., 1978-NMCA-072, 92 N.M. 635, 593 P.2d 470, rev'd on other grounds, 1978-NMSC-090, 92 N.M. 287, 587 P.2d 434.
Casual conversations not sufficient to charge knowledge. — Where plaintiff had developed a blister on her foot while at work, and there is nothing to evidence that defendant knew just what caused the blister, or that the subsequent infection and resulting disability were connected with this blister, casual conversations between claimant and defendant-employer concerning the existence and the time of development of the blister, and subsequent casual conversations concerning the fact that claimant's foot was hurting and that she had consulted a doctor or doctors were not sufficient to charge defendant with knowledge of the occurrence of an accident and of a compensable injury resulting therefrom. Smith v. State, 1968-NMCA-013, 79 N.M. 25, 439 P.2d 242.
Under the section requiring notice be given or the employer must have actual knowledge of the cause of the injury, a casual conversation between appellee and foreman does not give actual knowledge of what caused appellee's chest pains. Sanchez v. James H. Rhodes & Co., 1964-NMSC-063, 74 N.M. 112, 391 P.2d 336.
This section requires actual knowledge on the part of the employer, "or any superintendent or foreman or other agent in charge of the work in connection with [which] such injury occurred," before written notice is to be dispensed with. Notice in casual conversation is insufficient. It is not enough for one to say he is injured and even show the injured limb without some showing that notice was given or that the employer had actual knowledge of what caused it. This knowledge which the statute requires means "more than just putting upon inquiry and involves more than knowledge of the mere happening of an accident." And the knowledge which the employer must have to excuse a formal notice is of a compensable injury. Daulton v. Laughlin Bros. Drilling Co., 1963-NMSC-208, 73 N.M. 232, 387 P.2d 336.
It is not enough for one to say he is injured and even show injured limb without some showing that notice was given or that the employer had actual knowledge of what caused it. And the knowledge which the employer must have to excuse a formal notice is of a compensable injury. Bolton v. Murdock, 1957-NMSC-019, 62 N.M. 211, 307 P.2d 794 (decided under former law).
Conduct may warrant inference of actual knowledge. — Conduct on the part of an employer or agent in charge of the work may be sufficient to warrant a reasonable inference that he had actual knowledge of the accident and injury. Lyon v. Catron Cnty. Comm'rs, 1969-NMCA-108, 81 N.M. 120, 464 P.2d 410, cert. denied, 81 N.M. 140, 464 P.2d 559 (1970).
No actual knowledge where employee suffered pain and soreness after day of using sledge hammer and declined to foreman to use hammer next day stating he was hurt and asked employer's secretary if company had doctor because he had hurt his shoulder; employer did not have actual knowledge of compensable injury. Bolton v. Murdock, 1957-NMSC-019, 62 N.M. 211, 307 P.2d 794 (decided under former law).
Knowledge that workman (worker) sick at work not sufficient to excuse notice. — Where a long haul driver for defendant, while on a trip for defendant as a driver of a truck along with another driver, suffered a heart attack requiring his hospitalization for some 35 days and where no written notice was given within 30 days after the heart attack occurred, but defendant's superiors had knowledge of plaintiff's hospitalization very shortly after the occurrence, defendant was charged with knowledge that plaintiff became sick while performing his duties as a truck driver; even that he had a heart condition, and that his sickness and hospitalization resulted from a heart attack. Still, there was nothing more than the employer's knowledge that the workman (worker) became sick while at work, and such knowledge was insufficient to excuse written notice. Wilson v. Navajo Freight Lines, 1964-NMSC-032, 73 N.M. 470, 389 P.2d 594.
Making accident report and insurance paying bills as acknowledgment of notice. — The fact that the superintendent, after having been informed of the accident and injury, made out a report of the accident and injury, and the insurance carrier paid certain medical bills, manifests an acknowledgment by the appellants of notice of the accident and injury, and therefore, the appellants had actual knowledge of the accident and injury. Geeslin v. Goodno, Inc., 1967-NMSC-025, 77 N.M. 408, 423 P.2d 603.
Actual knowledge where employer notified insurance company of employee's disappearance. — When the employer in workmen's (workers') compensation case satisfied itself that plane carrying employees had disappeared, presumably crashed in the mountains in the dead of winter, and so advised its insurance company, it had actual knowledge of the occurrence, and compensation to employee's survivors should have been tendered within 31 days thereafter. Collins v. Big Four Paving, Inc., 1967-NMSC-019, 77 N.M. 380, 423 P.2d 418.
Employer's knowledge of potential hernia not knowledge of compensable hernia. — An employer's actual knowledge of the enlarged ring or relaxation, a potential hernia, did not constitute actual knowledge of a compensable left hernia after it occurred. Flournoy v. E.P. Campbell Drilling Co., 1964-NMSC-141, 74 N.M. 336, 393 P.2d 449.
Where employee only casually mentioned injury to driller and tool pusher and did not give notice in writing, the employer had no actual knowledge of the occurrence within the time limit and, as a matter of law, no notice was given. Daulton v. Laughlin Bros. Drilling Co., 1963-NMSC-208, 73 N.M. 232, 387 P.2d 336.
Uncontradicted evidence of employer's actual knowledge. — The trial court could not properly disregard the uncontradicted evidence that the employer had actual knowledge of the alleged accident by March 23 as none of the situations in Medler v. Henry, 1940-NMSC-028, 44 N.M. 275, 101 P.2d 398, are applicable here on the question of actual knowledge of the alleged accident. Ortiz v. Ortiz & Torres Dri-Wall Co., 1972-NMCA-005, 83 N.M. 452, 493 P.2d 418.
Evidence that partners had actual knowledge. — Evidence of a report, filled out by one partner and signed by the other partner, together with the evidence of plaintiff's conversation with each of the partners concerning his back pain, would be sufficient to sustain a finding that defendants had actual knowledge of the alleged accident. Ortiz v. Ortiz & Torres Dri-Wall Co., 1972-NMCA-005, 83 N.M. 452, 493 P.2d 418.
Law reviews. — For survey of 1990-91 workers' compensation law, see 22 N.M.L. Rev. 845 (1992).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 82 Am. Jur. 2d Workers' Compensation §§ 488 to 503.
When limitations period begins to run as to claim for disability benefits for contracting of disease under Workers' Compensation or Occupational Diseases Act, 86 A.L.R.5th 295.
100 C.J.S. Workmen's Compensation §§ 445 to 457.