(dissenting in part and concurring in part).
The plaintiff appeals an order dismissing his complaint which sought workmen’s compensation benefits. Sections 59-10-1 through 59-10-37, N.M.S.A.1953 (2d Repl. Vol. 9, pt. 1, 1974). I would reverse in part and remand in part.
Plaintiff’s complaint alleges the following facts: he sustained accidental on-the-job injuries on March 24, 1967; the injuries disabled him until March 23, 1968, when he resumed full-time employment with the defendant. In his brief, plaintiff states that the defendant paid him total disability benefits during this time, from March 24, 1967, until March 23, 1968. After March of 1968, the plaintiff resumed full-time employment with defendant until May 16, 1974, when he became totally disabled as a result of the 1967 accident. From May 16, 1974, until retirement on April 1, 1975, the plaintiff was on “sick leave by lay off status.” The complaint was filed on January 23, 1976.
The defendant filed a motion to dismiss pursuant to § 21-1-1 (12) (b)(6) and (d), N.M.S.A.1953 (Repl.Vol. 4, 1970). The defendant asserted the affirmative defense that plaintiff’s cause of action was barred by the statute of limitations. Section 59-10-13.6, N.M.S.A.1953 (2d Repl.Vol. 9, pt. 1, 1974).
A hearing was held but no outside testimony was presented. Only the arguments and stipulations of counsel were considered. The Order of Dismissal reads as follows:
“THIS MATTER came on this day to be heard upon Defendant’s Motion to Dismiss, the stipulations of counsel, and the Court having heard argument of counsel and being fully advised, FINDS:
That the motion is well taken and should be granted;
IT IS, THEREFORE, by the Court, ORDERED that Defendant’s Motion to Dismiss be and the same is hereby granted.
DONE in Open Court at Las Cruces, New Mexico, this 17th day of March, 1976.
s/Geo. L. Zimmerman District Judge by Designation”
The plaintiff asserts that the question is whether he “remained employed” until his retirement in April of 1975, after he went on “sick leave lay off status.” The plaintiff argues that he remained employed commencing May 16, 1974 until April 1, 1975 and that under § 59-10-13.6, supra, the statute of limitations was tolled for one year. Consequently, the plaintiff contends the action filed on January 23, 1976 was timely.
Defendant argues that no workmen’s compensation benefits were paid to plaintiff after May 16, 1974 and that plaintiff was not employed after this date. Defendant contends the statute of limitations was not tolled and the cause of action is barred.
The parties and the district court based their respective arguments and holding on the 1967 version of § 59-10-13.6, supra, of the New Mexico Workmen’s Compensation Act. In pertinent part, the 1967 version reads as follows:
“. . . This one year period of limitations shall be tolled during the time a workman remains employed by the employer by whom he was employed at the time of such accidental injury, not to exceed a period of one year. . . .” Laws 1967, ch. 151, § 1. [Emphasis added].
The 1967 amendment was enacted after the accident; therefore, we do not believe the 1967 version is applicable. The 1963 version, which is applicable, reads as follows :
“. . . This one-year period of limitations shall not be tolled during the time a workman is employed by the employed [sic] by whom he was employed at the time of such accidental injury . . . .” Laws 1963, ch. 269, § 6. [Emphasis added].
Originally, § 59-10-13.6, supra, did not mention tolling the statute of limitations. Laws 1959, ch. 67, § 10.
In 1963, the statute was amended, probably as a reaction to Cordova v. City of Albuquerque, 71 N.M. 491, 379 P.2d 781 (1962). Cordova read into the statute a tolling if the employer was relieved of the duty to pay compensation. The 1963 version reversed Cordova and clearly stated that the statute of limitations shall not be tolled. Cf. Roybal v. County of Santa Fe, 79 N.M. 99,440 P.2d 291 (1968).
In 1967, the legislature apparently had a change of heart. Section 59-10-13.6, supra, was amended to permit the statute of limitations to toll for up to one year. See Roybal v. County of Santa Fe, supra. Plaintiff’s injury was sustained on March 24, 1967. The 1967 amendment was approved by the legislature March 28, 1967. Since it was not specifically stated otherwise, the 1967 amendment went into effect ninety days after the adjournment of the legislature. N.M.Const. art. 4, § 23. The 1967 amendment should not be given retroactive effect. Clark v. Ruidoso-Hondo Valley Hospital, 72 N.M. 9, 380 P.2d 168 (1963); Davis v. Meadors-Cherry Co., 65 N.M. 21, 331 P.2d 523 (1958).
The statute of limitations was not tolled for one year because the applicable law specifically states that the statute shall not toll. Plaintiff’s complaint does not allege latent injuries, aggravation thereof, or misconduct on the part of the employer or the insured; therefore, I would not consider what effect these theories might have had on plaintiff’s right of recovery. See Chaffins v. Jelco Inc., 82 N.M. 666, 486 P.2d 75 (Ct.App.1971); § 59-10-13.3A(3) and § 59-10-14, N.M.S.A.1953 (2d Repl.Vol. 9, pt. 1,1974).
It appears from the record and also from the Order of Dismissal that the district court went beyond the pleadings in order to arrive at a decision. Because it considered matters outside of the pleadings, the defendant’s motion was treated by the lower court not as a motion to dismiss, but as a motion for summary judgment. Section 21-1-1 (12) (b), supra.
The criteria for disposing of a motion to dismiss for failure to state a cause of action is based on the premise that under no theory of law could the plaintiff recover. The motion to dismiss is proper where it appears that under no provable state of facts could the plaintiff be entitled to relief. Ritter v. Albuquerque Gas & Electric Co., 47 N.M. 329, 142 P.2d 919 (1943). Taking the pleadings as they are and assuming for purposes of this decision that the plaintiff remained employed for one year, if the 1963 amendment is applicable, I cannot see a theory of law under which the statute of limitations could have tolled.
If the motion is for summary judgment, the test is that there exists no genuine issue of material fact. A summary judgment proceeding is not to decide the issue of fact, but rather to determine whether one exists. Summary judgment is proper only where the moving party is entitled to the judgment as a matter of law upon clear and undisputed facts. Goodman v. Brock, 83 N.M. 789, 498 P.2d 676 (1972); First National Bank in Albuquerque v. Nor-Am Agricultural Products, Inc., 88 N. M. 74, 537 P.2d 682 (Ct.App.1975). Assuming the facts to be undisputed, that the plaintiff remained employed for one year, the 1963 version nevertheless would not toll the statute of limitations and the action would have to be dismissed as untimely.
I conclude that whether the court treated this as a motion for dismassal for failure to state a cause of action or for summary judgment, under both categories the district court was correct. See Tsosie v. Foundation Reserve Insurance Co., Inc., 77 N. M. 671, 427 P.2d 29 (1967); H. T. Coker Construction Co. v. Whitfield Transportation, Inc., 85 N.M. 802, 518 P.2d 782 (Ct.App.1974).
Late filing, however, does not bar plaintiff’s medical expenses because the limitation of § 59-10-13.6, supra, does not apply. Lasater v. Home Oil Co., Inc., 83 N.M. 567, 494 P.2d 980 (Ct.App.1972) rev’d in part as to attorney’s fees, Schiller v. Southwest Air Rangers, Inc., 87 N.M. 476, 535 P.2d 1327 (1975). Plaintiff’s complaint seeks “medical care and attention, payment of accrued expenses for such services, attorney’s fees and any other benefits to which he may be entitled.” I would remand to the district court to determine whether the plaintiff is entitled to medical expenses and attorney’s fees. Schiller v. Southwest Air Rangers, Inc., supra; Lasater v. Home Oil Co., Inc., supra.
The judgment of the district court with respect to payment of workmen’s compensation should be affirmed. The judgment with respect to medical expenses and attorney’s fees should be reversed and remanded to the district court.