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Montoya v. Kirk-Mayer Inc.8/23/1995
DONNELLY, Judge.
1. Appellants, Kirk-Mayer, Inc. and CNA Insurance Companies, appeal from an order of the Workers' Compensation Judge (WCJ) granting Worker's motion for partial summary judgment and striking Appellants' affirmative defense that Worker's claim for compensation benefits was barred by the statutory limitation prescribing the time for filing a workers' compensation claim as set forth in NMSA 1978, Section 52-1-31 (Repl. Pamp. 1991). Appellants also appeal from that portion of the compensation order which awarded Worker twenty-one percent permanent partial disability. For the reasons discussed herein, we reverse.
FACTS
2. Worker was employed in Los Alamos, New Mexico, by Kirk-Mayer, Inc. as a computer keyboard operator. On January 14, 1992, he suffered a work-related injury to his back. He received workers' compensation temporary total disability benefits until April 30, 1992, when payment of benefits was terminated.
3. Worker was treated initially by his chosen physician, Dr. Christopher Cecil, until April 13, 1992, when Appellants changed his health care provider to Dr. Paul Legant. Dr. Legant found that Worker had reached maximum medical improvement on April 27, 1992, that he had a zero percent impairment rating, and that he should be released to return to his prior job . Following his release by Dr. Legant, Worker still was experiencing low back pain and some restriction of movement. Approximately seven-and-one-half months later, on December 23, 1992, Worker again consulted Dr. Cecil concerning his back injury . At that time, Dr. Cecil informed Worker that in his opinion he had a twenty-percent partial permanent impairment.
4. Worker filed a claim for workers' compensation benefits on July 19, 1993, and an amended claim for workers' compensation benefits on August 19, 1993. Appellants denied Worker's claim and, among other things, raised as an affirmative defense that the claim was barred by the statute of limitations. Worker filed a motion for partial summary judgment requesting that Appellants' affirmative defense be stricken. Following a hearing, the WCJ entered an order determining that "summary judgment in favor of Worker on [Appellants'] defense of the statute of limitations is granted."
5. Prior to trial, the WCJ appointed an independent medical examiner, Dr. Robert Benson, whose testimony was presented by deposition. Dr. Benson opined that Worker had an impairment rating of twenty-one percent as a result of his accident. After trial on the merits, the WCJ found that Worker suffered a work-related accident to his back resulting in a permanent impairment of twenty-one percent to his body as a whole.
PROPRIETY OF SUMMARY JUDGMENT
6. Appellants contend that the WCJ erred in striking their affirmative defense which asserted that Worker's claim was barred by the statute of limitations. Appellants argue that the order granting summary judgment was improper because their response to the motion relied on deposition testimony of Worker, who himself indicated that there were genuine disputed issues of material fact concerning whether he knew or reasonably should have known that he suffered a compensable disability following the termination of the payment of his workers' compensation on April 30, 1992, so as to require that his claim be filed prior to July 19, 1993.
7. Appellants point out that Worker was injured on January 14, 1992, and his complaint was first filed on July 19, 1993, over one-and-one-half years following his accident. Appellants argue that under Section 52-1-31(A), Worker was required to file his claim within one year and thirty-one days after his employer or insurer
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