Rayburn v. Boys Super Market Inc‪.‬

Appellees seek to support their contention with the argument that Batte v. Stanleys, 70 N.M. 364, 374 P.2d 124, permits a claimant to file his claim, and his right of action accrues even though he is earning the same wage as before the injury if there is anything which hints of a possible future loss of wage earning ability. We do not agree. Batte goes no further than to hold that a claim is not premature merely because the injured workman continues to work and receive as much as before the injury, if his wage earning ability has been decreased by the injury and the amount received by him thereafter does not truly represent his wage earning ability. In that case, the workmans wage earning ability was decreased by the injury. A part of the amount paid by his employer represented a gratuity rather than wages actually earned. Under such circumstances, it was said that upon the decrease in wage earning ability being established, the formula of 59-10-18.3, N.M.S.A.1953 was properly applied. There is no suggestion in the evidence in this case that the workman did not earn the wages received by him after the accident. We hold that the statute of limitations does not commence to run until the wage earning ability of the injured workman has been decreased as a result of the accidental injury.