(concurring in part, and dissenting in part).
I concur in part and dissent in part. I concur in affirmance of awards of compensation, and dissent on the denial of certain medical expense to Beckwith.
A. Cactus and Liberty Mutual
(1) Sufficiency of Statutory Notice
Cactus and Liberty Mutual claim that compensation is barred because of insufficiency of notice under § 59-10-13.4, N.M. S.A.1953 (Repl.Vol. 9, pt. 1). They admit receipt of written notice that plaintiff sustained compensable injury to his left leg, but contend that they had no notice within the statutory period of an injury to his low back, not connected in any way to the leg injury.
These defendants challenge the sufficiency of the following finding of fact:
4. The defendants had actual knowledge, within 30 days, of the accident of December 25, 1969, and that plaintiff suffered compensable injuries as a result thereof.
Section 59-10-13.4, supra, provides in part:
A. Any workman claiming to be entitled to compensation from any employer shall give notice in writing to his employer of the accident and of the injury within thirty [30] days after their occurrence; * * *.
B. No written notice is required to be given where the employer * * * in connection with which the accident occurred had actual knowledge of its occurrence. [Emphasis added]
There are two lines of authority under subsection B on the sufficiency of notice based upon “actual knowledge” of defendants.
(1) Written notice is not required where an employer has actual knowledge of the occurrence of the accident. Waymire v. Signal Oil Field Service, Inc., 77 N.M. 297, 422 P.2d 34 (1966); Collins v. Big Four Paving, Inc., 77 N.M. 380, 423 P.2d 418 (1967).
2. Written notice is not required where an employer has actual knowledge of the occurrence of the accident “and a compensable injury.” Roberson v. Powell, 78 N.M. 69, 428 P.2d 471 (1967). Roberson does not require actual knowledge of “each specific compensable injury.” Actual knowledge of “a compensable injury” is sufficient. Defendants admit actual knowledge as well as written notice of “a compensable injury” to the leg.
Finding No. 4, supra, is sufficient notice under either rule.
Some discussion of the two rules is necessary to arrive at a fixed principle of law because notice under § 59-10-13.4, supra, is a mandatory requirement and a condition precedent to recovery of workmen’s compensation. Geeslin v. Goodno, Inc., 75 N.M. 174, 402 P.2d 156 (1965).
Section 59-10-13.4, supra, was enacted in 1959. Ch. 67, § 8, 1959. This Act repealed § 59-10-13, N.M.S.A.1953 (Vol. 9), the former statute, which stated in part:
Provided, that no such written notice shall be requisite where the employer * * * in connection with [which] such injury occurred had actual knowledge of the occurrence thereof. [Emphasis added]
The 1959 Act substituted the phrase “in connection with which the accident occurred,” for the previous phrase “in connection with which such injury occurred.” [Emphasis added] It was clearly the intent of the legislature to make actual knowledge of the “accident” sufficient notice to the employer. With actual knowledge of the “accident,” the burden shifted to the employer to investigate the accident, to investigate the facts while they were assessible to determine whether a compensable injury occurred, and, if necessary, to employ a doctor to speed recovery. Collins and Waymire, supra. This analysis follows the language of the 1959 Act.
It is obvious that the primary purpose of statutory notice, whether written or actual, is to alert the employer to the occurrence of an accident. Upon notice of the accident, the employer has the right to select the physician or surgeon to care for injured employees. Valdez v. McKee, 76 N.M. 340, 414 P.2d 852 (1966). This physician or surgeon will examine the employee to determine whether compensable injuries have occurred.
Under “written notice,” an employee is not burdened with notifying the employer of every compensable injury sustained. He may not know. Under § 59-10 — 13.-4(A), supra, he is required to give notice only of “the injury” for which he seeks compensation. The employer’s physician or surgeon will determine the extent of “the injury” and whether other compensable injuries occurred.
Where the employer has “actual notice” of an accident, he must determine whether an injury occurred because, “after injury,” it is mandatory that the employer “furnish all reasonable surgical, medical * * * and hospital services and medicine.” Section 59-10-19.1(A), N.M.S.A.1953 (Repl. Vol. 9, pt. 1, Supp.1971). Hedgecock v. Vandiver, 82 N.M. 140, 477 P.2d 316 (Ct.App.1970).
The medical benefits provided for “injury” under § 59-10-19.1, supra, cannot be limited by the notice provisions of “the injury” under § 59-10-13.4, supra. Compare Valdez v. McKee, supra.
To follow the Roberson rule, supra, requires reading into subsection B, supra, the following additional emphasized words:
No written notice is required to be given where the employer * * * in connection with which the accident occurred had actual knowledge of its occurrence [and actual knowledge of a compensable injury.]
The question is: Can an appellate court read language into subsection B to further protect the employer? The answer is “no.” There are at least four reasons.
(a) An express repeal of a statute takes all force away from it because it is totally destroyed. Where the new statute enacted is in plain and explicit language, the legislature means what it says. Gustafson v. Rajkovich, 76 Ariz. 280, 263 P.2d 540, 40 A.L.R.2d 520 (1953); Woolsey v. Lassen, 91 Ariz. 229, 371 P.2d 587 (1962). The repealed act “is operationally deemed to have never existed.” Garrison v. Garrison, 179 N.W.2d 466 (Iowa 1970); Certain Taxpayers v. Sheahen, 45 Ill.2d 75, 256 N.E.2d 758 (1970). In the instant case, the legislature substituted the word “accident” for “injury,” and actual knowledge of the “accident” is a sufficient compliance with subsection B.
Roberson, supra, relies upon § 59-10-13, supra, which was repealed. Collins and Waymire, supra, do not.
(b) We must presume that the legislature, in enacting § 59-10-13.4, supra, intended to change the law as it had theretofore existed. Bettini v. City of Las Cruces, 82 N.M. 633, 485 P.2d 967 (1971).
(c) “We are not permitted to read into a statute language which is not there, particularly if it makes sense as written.” State ex rel. Barela v. New Mexico State Bd. of Ed., 80 N.M. 220, 453 P.2d 583 (1969).
(d) “Written notice” under subsection A is a general provision which is controlled by the special provision set forth in subsection B for “actual notice.” Cromer v. J. W. Jones Construction Company, 79 N.M. 179, 441 P.2d 219 (Ct.App.1968).
We do not believe that the words “and actual knowledge of a compensable injury” can be added to § 59-10-13.4(B), supra.
(2) Sufficiency of Finding on Partial Disability
The trial court found:
11. By reason of the accidental injury to his back arising out of and in the course of his employment on December 25, 1969, the plaintiff had on March 29, 1971, and will continue to have a 15% partial permanent disability to perform the usual tasks he was performing on December 25, 1969, and to perform any work for which he is fitted.
Defendants claim there is no evidence to sustain the finding.
Unattacked findings of the trial court show that “As a medical probability, plaintiff is suffering permanent disability to his left leg and low back as a result of injuries thereto,” and “there is a causal connection between the injuries to his left leg and low back and the accident of December 25, 1969.” The only issue is whether there is sufficient evidence to support a finding of 15% partial permanent disability.
A review of the medical testimony supports the finding. A physician testified that Beckwith had 10% permanent disability to the body as a whole due to the injury to his lower back, and 5% additional due to the aggravation of the pre-existing low back problem. There was other medical testimony to support the finding. The trial court is not bound solely by expert testimony. “Medical testimony, like other expert evidence, is intended to aid but not to conclude the trier of the facts in determining the extent of disability.” Lucero v. Los Alamos Constructors, Inc., 79 N.M. 789, 450 P.2d 198 (Ct.App.1969).
There was sufficient evidence to support the finding of 15% partial permanent disability.
(3) Sufficiency of Findings on Medical Treatment
Defendants attack two findings of fact on medical treatment. They are:
6. From March 26, 1970, until October of 1970, defendants provided and paid for medical treatment to the plaintiff which was not adequate and reasonable medical treatment for the injuries arising out of the accident on December 25, 1969.
7. From October, 1970, to date after defendants failed and refused to provide adequate medical treatment for plaintiff, Dr. Graham Palmer furnished and prescribed to plaintiff medical treatment, hospital services and medication which were adequate and reasonably necessary for plaintiff’s injuries arising out of the accident on December 25, 1969, for which defendants have not paid directly or reimbursed plaintiff. [Emphasis added]
It is not necessary to determine whether findings Nos. 6 and 7 are erroneous because any claimed error is cured by findings Nos. 28, 29, 30 and 31. These findings granted Beckwith recovery for medical treatment and hospitalization by four doctors from October, 1970, to date. Defendants contend they are not obligated to pay these additional expenses. In the Statement of Proceedings, these findings were “Challenged — Point III.” Under Point III of the brief in chief, defendants limited argument to findings Nos. 6 and 7, supra. No mention was made of findings Nos. 28, 29, 30 and 31.
The pertinent Supreme Court Rule § 21-2-1(15) (16) (b), N.M.S.A.1953 (Repl. Vol. 4) states in part:
Statement of the grounds for challenging any finding must be set forth in the argtiment and not in the Statement of Proceedings. [Emphasis added]
This provision is mandatory- The defendants waived all challenges made in the Statement of Proceedings because they failed to argue findings Nos. 28, 29, 30 and 31 in the brief in chief. These findings, therefore, were not properly challenged or directly attacked. They are binding upon this court. Hedgecock v. Vandiver, supra. They constitute facts upon which this case rests in this court. Baca v. Gutierrez, 77 N.M. 428, 423 P.2d 617 (1967). These findings are sufficient to cast on defendants the obligation to pay for medical treatment and hospitalization from October, 1970, to date of trial.
I dissent from that portion of the majority opinion which denies certain medical expense. As long as this court condones noncompliance with rules of appellate procedure, the rules will have a useless life.
B. McVay and Reliance
(1) Sufficiency of Notice
McVay and Reliance also claim they did not have notice as required by statute of a compensable injury to Beckwith’s cervical or thoracic spine, by accident suffered on December 3, 1970.
The trial court found:
17. The defendants had actual knowledge, within 30 days, of the accident of December 3, 1970, and that the plaintiff suffered compensable injuries as a result thereof.
These defendants challenged this finding. On December 29, 1970, within the 30 day period, Beckwith gave defendants written notice' of the accident which occurred on December 3, 1970, together with notice that he suffered a compensable injury to his right leg and to his eyes. No mention was made of any injury to his spine.
For the reasons set forth under “Sufficiency of Notice” in Cactus and Liberty Mutual, I find no error.
In my opinion, Beckwith is entitled to additional attorney fees for this appeal at least in the sum of $1500.00. We should begin to recognize the value of services in 1972.