dissenting.
The majority ignores the facts of this case and simply assumes that there is a latent injury. There is no latent injury in this case.
The following facts are undisputed. On August 12, 1980, the truck Smith was driving flipped over, crushing the cab of the truck. In his deposition, Smith stated that immediately after the accident he experienced substantial back pain and pain in a leg that caused him to limp for a week. More importantly, Smith stated, as the reason for seeking a physician’s attention about one month after the accident, that “[he] knew that there had to be something wrong because [he] couldn’t do [his] job at all.” Smith further stated that although he often experienced extensive pain, he “felt that [he] should try to work through this pain.” Smith received weekly or biweekly care and treatment from a chiropractor for continued back and neck pain and for numbness in hands and feet. Therefore, based on the undisputed facts and Smith’s statements, Smith knew that he had a disabling injury at the time of the accident.
On November 18, 1982, two years and three months after his accident, Smith filed this action for relief under the Workmen’s Compensation Act. Under NMSA 1978, Section 52-l-31(A), a workman who remains employed by the same employer from the time of an accident has a maximum period in which to file his workmen’s compensation claim of two years and thirty-one days. See ABF Freight System v. Montano, 99 N.M. 259, 657 P.2d 115 (1982). Thus, Smith’s claim is barred because he did not file his claim by September 13, 1982, the end of the limitation period.
By their assumption of a “latent injury” in this case, the majority circumvent the clear application of Section 52-l-31(A). This Court stated that in determining when the statutory period begins to run, “[t]he important thing is whether the injury was not or could not have been discovered with reasonable diligence.” Letteau v. Reynolds Electrical & Engineering Co., 60 N.M. 234, 237, 290 P.2d 1072, 1074 (1955). Or, as more recently held by the Court in ABF Freight Systems v. Montano:
the statutory period begins to run “[a]s soon as it becomes reasonably apparent, or should become reasonably apparent to a workman that he has an injury on account of which he is entitled to compensation and the employer fails or refuses to make payment he has a right to file a claim and the statute begins to run from that date.” (Citation omitted.)
99 N.M. at 260, 657 P.2d at 116 (quoting Noland v. Young Drilling Co., 79 N.M. 444, 447, 444 P.2d 771, 774 (Ct.App.1968)).
In this case, Smith was in pain and unable to perform his normal work from the date of the accident. Also, he stated that he “knew something * * * [was] wrong because [he] couldn’t do [his] job at all.” Therefore, Smith’s injury was apparent, not latent; and the statutory period began on the date of the accident and ended on September 13, 1982.
The majority’s statement that it would be unfair to expect a “common laborer” to have greater knowledge than a medical expert, is not relevant to any issue in this case. None of the cases cited by the majority support such a statement. In Letteau, relying on Gonzales v. Coe, 59 N.M. 1, 277 P.2d 548 (1954), we stated that “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 compensation.” 60 N.M. at 238, 290 P.2d at 1074. The record reveals that Smith knew he was injured on the date of the accident. Thus, it was his burden to file a timely claim.
The majority relies on a quotation from Casias v. Zia Co., 93 N.M. 78, 596 P.2d 521 (Ct.App.), cert. denied, 93 N.M. 8, 595 P.2d 1203 (1979), which does not address the holding of that case. The holding of Casias is represented more accurately by the following:
(1) The statute of limitation does not begin to run when a non-disabling accident occurs, but rather when the workman knows or should know that he has sustained a compensable injury as a result of the accident. (Citations omitted.)
93 N.M. at 80, 596 P.2d at 523. Thus, Casias is consistent with the holdings of this Court that the workman’s awareness of his injury begins the statute of limitations period.
In effect, the majority have overruled all prior “latent injury” cases. By dispensing with the “apparent injury” standard in favor of a standard that requires a reasonable man to recognize the “nature” of his injury, the “seriousness” of his injury, and the “probable, compensable character” of his injury, the majority have nullified the limitation period in Section 52-l-31(A). Such an over-burdened standard of proof is contrary to the intent of the Legislature and to the purpose of the statute.
In addition, by making the relative knowledge or education level of a claimant the premise of their rationale, the majority arguably have created a standard not previously recognized or applied to Section 51-1-31(A). Such an unsupported premise creates additional confusion in the application of the statute.
I would affirm the trial court.