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Gambrel v. Marriott Hotel8/15/1991
CHAVEZ, Judge.
Marriott Hotel and its insurance company (hereinafter collectively referred to as "employer") appeals from that portio of the workers' compensation judge's (WCJ) compensation order awarding death benefits to worker's widow. Employer raises a single issue on appeal: whether the two-year time limit for bringing claims for death benefits under NMSA 1978, Section 52-1-46 (Cum. Supp. 1986) (Interim Act), begins to accrue from the date of the accident or from the date the worker knew or should have known of a compensable injury . State of New Mexico Superintendent of Insurance and the Subsequent Injury Fund (Fund) also appeals, arguing (1) employer failed to substantially comply with the Subsequent Injury Act (SIA); (2) the apportioned liability between the employer and the Fund is not supported by substantial evidence; and (3) the purpose and policy of SIA is violated by assessing liability against the Fund in his case. We deny employer's motion to strike worker's answer brief as nonresponsive. For reasons stated below, we affirm the award of death benefits but reverse the compensation order insofar as it holds the Fund liable. We also grant widow's request for attorney's fees for this appeal.
FACTS
On March 5, 1987, while working as a carpenter, worker was assigned the task of stripping chairs in a small, unventilated room. At this time, employer was aware that worker suffered from a preexisting physical impairment to his lungs due to chronic obstructive pulmonary disease. Worker subsequently filed a workers' compensation claim against employer, and was awarded permanent total disability benefits
in a March 23, 1988, compensation order. This compensation order also found (1) that exposure to the stripping chemicals was the direct and proximate cause of his disability and (2) that worker knew or should have known that he suffered a compensable injury on August 17, 1987. We affirmed the order by memorandum opinion. (Ct. App. No. 10, 599, filed April 18, 1989). Worker died on April 30, 1989, of acute pulmonary embolus with pulmonary infarction.
Widow filed a claim for death benefits on December 1, 1989. Employer had previously filed a third-party complaint against the Fund and had filed a certificate of preexisting physical impairment on October 10, 1989. The certificate was not signed, however, by either worker or widow. A compensation order was entered on August 13, 1990, awarding death benefits to worker's widow and apportioning liability equally between employer and the Fund.
Discussion
I. Employer's Appeal
Employer claims that, as a matter of law, widow is not entitled to the award of death benefits and funeral expenses under Section 52-1-46 because of the time bar contained therein. The question presented for review is whether the two-year period within which the claim must be brought begins to run from the date of the accidental injury rather than the date worker knew or should have known he had a compensable injury.
Section 52-1-46 states, in relevant part: Subject to the limitation of compensation payable under Subsection G of this section, if an accidental injury sustained by a workman proximately results in his death within the period of two years following his accidental injury, compensation shall be paid in the amount and to the persons entitled thereto, as follows . . . .
We begin by noting that the proper construction of this statutory provision requires that we determine legislative intent: See ) (central concern of reviewing court is to determine l
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