(dissenting).
I respectfully dissent both on the issue of limitation and on the issue of notice.
One-year limitation
I do not feel that the findings noted above, as they relate to impairment of motion in claimant’s elbows, are sufficient to support the trial court’s conclusion that the claim was barred by § 59-10-13.6, N.M. S.A.1953 (Repl.VoI. 9, pt. 1, Supp.1973). They indicate that it was or should have been apparent to claimant from the limitation he suffered after his post-operative convalescence that he had suffered a compensable injury. Yet, he did not file suit until October 25, 1972, which was not within one year of the date he was released from post-operative care.
The trial court, however, failed to find an essential fact. See Worthey v. Sedillo Title Guaranty, Inc., 85 N.M. 339, 512 P.2d 667 (1973). If the claimant in fact suffered an impairment of motion in his elbows before the occurrence of the accident, he could hardly be put on notice of a compensable injury by the fact that it remained in existence. In this event the limitation of motion would have been caused by the pre-existing condition, not the accident.
The problem as to the claimant’s pre-accident range of motion is raised by the fact that the claimant had suffered osteochondromatosis since childhood and by the treating physician’s testimony that claimant’s medical condition on March 2, 1970, was, “ . . . better than before the injury. . . . ” Unless there is some basis in the record from which we can infer that the trial court found that there was no pre-existing impairment of motion, we should remand. See Worthey v. Sedillo, supra; Isaac v. Seguritan, 66 N.M. 410, 349 P.2d 126 (1960).
It is true that the burden is upon the claimant to prove compliance with the limitation statutes. Baker v. Shufflebarger & Associates, Inc., 77 N.M. 50, 419 P.2d 250 (1966). It is also true that the trial court rejected the following proposed finding of fact:
“8. This impairment of function or limitation of motion and resulting disability in the Plaintiff’s right elbow was less in the spring of 1970, and at all times since thén, than it had been prior to December 16, 1969.”
The burden and the rejection of the proposed finding could serve as the basis for an inference that the trial court found adversely to the claimant on this issue. See Worthey v. Sedillo Title Guaranty, Inc., supra.
I would not make that inference. First, the finding was proposed by the defendants presumably on the issue of causation. If true, it would tend to establish that claimant could not have been placed on notice of a compensable injury by limitation of motion. Defendants, of course, must establish the opposite proposition to prevail. Second, there is no testimony in the record, other than that of the medical expert set out above, on which a finding could be based. The claimant did testify as follows :
“Q. Did you have any trouble with your elbows during that job ?
“A. No, I never did have any difficulties with my elbows.
“Q. Doctor Rosenbaum said you had this problem all your life. Didn’t you know you had that problem?
“A. No, I don’t recall having problems with my elbows. I never did go to a doctor about my arms.”
This testimony was later qualified by claimant. He indicated that when he spoke of problems he meant “medical problems,” of the type which would require medical attention. He also encountered some difficulty in pitching a baseball as a child and in heavy lifting later.
I do not feel that claimant’s testimony as related above is sufficient to allow an inference on the amount of loss of flexion and extension in his elbows, if any, which he suffered prior to the accident. Accordingly, the case should be remanded for a new hearing and findings on that issue. See Jontz v. Alderete, 64 N.M. 163, 326 P. 2d 95 (1958).
The trial court’s findings indicate that it was apparent to plaintiff that he had a compensable injury because of the alleged “limitation of motion or impairment in function.” It is not clear whether these phrases are used interchangeably or whether there was some additional “impairment of function” which put plaintiff on notice.
We need not interpret the findings. I would hold that there is no other basis in the record for a finding that claimant suffered any other physical impairment before March 2, 1970, which placed him on notice of a compensable injury.
There is some suggestion that claimant should have been placed on notice by the occurrence of the accident and subsequent surgery. He did receive workmen’s compensation benefits. They terminated when he returned to work. The claim is that despite the recurrence of his injuries in the fall of 1971, the claimant cannot, “ . disregard a compensable injury and wait until permanent incapacity results therefrom before he is obliged to file his claim. . ” Noland v. Young Drilling Company, 79 N.M. 444, 444 P.2d 771 (1968).
The difficulty with this contention is that the trial court found that claimant was put on notice by “impairment[s] in function” remaining “after recovery from his surgery.” Thus, there is no finding that the accident and surgery placed claimant on notice.
I do not understand the defendants to claim that any weakness or swelling in the arms and elbows during the convalescent stage put the claimant on notice. Any such claim also is subject to the lack of a finding on the issue since there was no evidence of any swelling or weakness after recovery.
The record does indicate that the claimant suffered some pain for an extended period following his release from post-operative care. This could not have put claimant on notice of a compensable injury because it alone was not compensable. It is axiomatic that a claimant cannot be on notice of a compensable injury where he has no present right to compensation. Pain is merely, “ * * * incident to the injury suffered. * * * ” Sisneros v. Breese Industries, Inc., 73 N.M. 101, 385 P.2d 960 (1963). Section 59-10-18.4, N.M.S.A.1953 (Repl.Vol. 9 pt. 1, Supp.1973) allows recovery for “loss or loss of use” of a member. Here there is no showing that the pain caused any loss of use. In fact, the showing is to the contrary. Claimant continued heavy physical labor after the accident with no apparent difficulty.
Notice
With respect to the notice issue the trial court found:
“11. That defendants received proper notice of the original accident of December 16, 1969, and that plaintiff was injured in said accident, or the employer had actual notice thereof, and thereafter the defendants paid plaintiff certain Workmen’s Compensation benefits, including medical expense.”
In Beckwith v. Cactus Drilling Corporation, 84 N.M. 565, 505 P.2d 1241 (Ct.App.1972), we held that actual knowledge on the part of the employer within the 30 day period excused the requirement of written notice.
Defendants seek to avoid the effect of Beckwith by arguing that where the claimant alleges latent injury, “ * * * the policy behind § 59-10-13.4, supra * * requires notice to be given even though the employer knows of the accident. The statute is clear and unambiguous. It is not our province to construe or interpret it. The actual knowledge provision is satisfied if there is knowledge of the accident. Knowledge of the injury, latent or otherwise, is not mentioned and is not relevant. To hold otherwise would be reading words into the statute. Beckwith v. Cactus Drilling Corporation, supra.
The judgment of dismissal should be reversed.