52-1-31.  Claim to be filed for workers’ compensation; effect of failure to give required notice or to file claim within time allowed.

Generally.

Applicability.

Burden of proof.

Compensation.

Conflict of laws.

Construction with other law.

Continuation of action.

Contracts.

Cost of depositions.

Defenses.

Disability.

Factual issues.

Judgment.

Knowledge.

Medical treatment.

Notice.

Pleadings.

Question of law or fact.

Remedies.

Second injury.

Subsection A.

Subsequent insurer.

Summary judgment.

Temporary benefits.

Time limitations.

Workers’ compensation.

Premature filing section of the Workers’ Compensation Act, specifically 52-1-69 NMSA 1978, does not apply to dependents, as that term is defined in 52-1-17 NMSA 1978, but expressly applies to a worker, as that term is defined in 52-1-16 NMSA 1978, and 52-1-31 NMSA 1978 provides additional evidence that the Act distinguishes between workers and dependents. Pursuant to 52-1-30B NMSA 1978, the worker’s entitlement to future compensation payments is contingent upon the totality and permanency of his disability, and 52-1-69 NMSA 1978 bars him from making a claim for compensation benefits he is already receiving. Zamora v. CDK Contracting Co., 1987-NMCA-093, 106 N.M. 309, 742 P.2d 521, 1987 N.M. App. LEXIS 764 (N.M. Ct. App.), cert. quashed, 106 N.M. 353, 742 P.2d 1058, 1987 N.M. LEXIS 3711 (N.M. 1987).

Employee was not barred by 52-1-31A NMSA 1978 from bringing an action to recover vocational rehabilitation benefits from the employer and insurer because the statute only referred to disability compensation benefits, not medical benefits. Maitlen v. Getty Oil Co., 1987-NMCA-002, 105 N.M. 370, 733 P.2d 1, 1987 N.M. App. LEXIS 661 (N.M. Ct. App. 1987).

52-1-31A NMSA 1978 applies only to the worker’s claim against his employer or insurance carrier, and not to claims against the Subsequent Injury Fund by either the worker, the employer, or the insurance carrier. Duran v. Xerox Corp., 1986-NMCA-124, 105 N.M. 277, 731 P.2d 973, 1986 N.M. App. LEXIS 706 (N.M. Ct. App. 1986).

Where an employer voluntarily paid an employee the maximum amount due under the New Mexico Workmen’s Compensation Act for permanent and total disability, the employer’s subsequent payment of a reduced amount constituted a refusal to pay an installment of compensation; the employee’s claim was barred because it was not filed within the required time after the employer’s commencement of reduced payments. Bearup v. Peru Min. Co., 1934-NMSC-081, 38 N.M. 531, 37 P.2d 535, 1934 N.M. LEXIS 82 (N.M. 1934).

Where an employee was receiving maximum compensation benefits in periodic installments, and requested a hearing upon the appropriateness of a lump-sum award, his request for a lump-sum payment was not a claim for compensation as that term was described in 52-1-31 NMSA 1978. Raines v. W.A. Klinger & Sons, 1988-NMSC-083, 107 N.M. 668, 763 P.2d 684, 1988 N.M. LEXIS 291 (N.M. 1988).

Sections 52-1-30 NMSA 1978 and 52-1-31A NMSA 1978 are to be added together to compute the maximum period of time in which to file a claim for workers’ compensation benefits; this construction is consistent with the liberal interpretation to be given the remedial provisions of the workers’ compensation statutes. Cole v. J.A. Drake Well Serv., 1987-NMCA-132, 106 N.M. 484, 745 P.2d 392, 1987 N.M. App. LEXIS 818 (N.M. Ct. App. 1987).

In a workmen’s compensation action, the trial court properly denied a summary judgment motion filed by the personal representative of the deceased employer, arguing that the action, which was timely filed under the Workmen’s Compensation Act, 52-1-31A NMSA 1978, was untimely filed under 45-3-803B NMSA 1978 of the Probate Code. The workmen’s compensation statutes create exclusive rights, remedies, and procedures, and 45-3-803B NMSA 1978 did not indicate that the Legislature intended to make it, as the general statute, controlling, so the appellate court presumed that the special workmen’s compensation limitation applied. Lucero v. Northrip Logging Co., 1984-NMCA-061, 101 N.M. 420, 683 P.2d 1342, 1984 N.M. App. LEXIS 688 (N.M. Ct. App. 1984).

To defeat an employer’s motion for summary judgment on the basis of a genuine factual issue, a workmen’s compensation claimant had the burden of showing that a factual issue existed as to whether the claimant was capable of understanding, in a reasonable manner, her legal right to claim compensation due to mental capacity and the effect of failure to make a timely claim under 52-1-31 NMSA 1978; the test of mental capacity was whether the claimant was capable of understanding in a reasonable manner, the nature and effect of the act in which the person is engaged. Lent v. Employment Sec. Comm'n, 1982-NMCA-147, 99 N.M. 407, 658 P.2d 1134, 1982 N.M. App. LEXIS 977 (N.M. Ct. App. 1982), cert. quashed, 99 N.M. 226, 656 P.2d 889, 1983 N.M. LEXIS 2254 (N.M. 1983).

Compensation order of the Workers’ Compensation Judge (WCJ) that determined that an employee was entitled to permanent partial disability benefits, and that her claim was not time-barred under 52-1-31A NMSA 1978, was affirmed; WCJ’s manner of allocating credit for previous payments, whereby the WCJ applied the credit for the lump-sum payments made to the employee, did not frustrate the purposes of 52-1-31A NMSA 1978 nor contravene the policies of the Workers’ Compensation Act, 52-1-1 NMSA 1978. West v. Home Care Resources, 1999-NMCA-037, 127 N.M. 78, 976 P.2d 1030, 1999 N.M. App. LEXIS 6 (N.M. Ct. App. 1999).

In an action against defendants, an employer and its insurer, by plaintiff worker for workers’ compensation benefits, partial summary judgment was improperly granted to the worker because there was a question of fact as to whether the worker’s claim for benefits was barred by the applicable statute of limitations, 52-1-31A NMSA 1978, and factual issues existed concerning the worker’s argument that, because his disability could not reasonably be ascertained until the three separate requirements of 52-1-24A NMSA 1978 were met, he should not have been expected to file a claim for compensation benefits before a medical care provider had informed him of the existence of an impairment. Montoya v. Kirk-Mayer, Inc., 1995-NMCA-104, 120 N.M. 550, 903 P.2d 861, 1995 N.M. App. LEXIS 100 (N.M. Ct. App. 1995).

Where trial court’s entry of judgment neglected to address the statute of limitations issue raised by the defendant, the case had to be remanded to the trial court for a further finding on the issue of timeliness. Baker v. Shufflebarger & Assocs., 77 N.M. 50, 419 P.2d 250, 1966 N.M. LEXIS 2745 (N.M. 1966).

Dismissal of a claim was upheld where failure to give notice as required by statute barred a claim for, or the recovery of, benefits; actual knowledge was required before written notice could be dispensed with; the failure to give the notice as required by former 59-10-13.4, 1953 Comp. (now 51-1-29 NMSA 1978) barred a claim for, or the recovery of, compensation, former 59-10-13.6, 1953 Comp. (now 52-1-31 NMSA 1978) because notice in casual conversation was insufficient to give notice. Higgins v. Board of Directors, 1964-NMSC-034, 73 N.M. 502, 389 P.2d 616, 1964 N.M. LEXIS 2111 (N.M. 1964).

Once an employer made a prima facie showing that a workmen’s claim was barred by the time limitation in 52-1-31 NMSA 1978 the claimant had the burden of showing that there was an issue of material fact to defeat summary judgment but the claimant did not meet her burden of showing a genuine factual issue as to when she knew about her alleged injury. Lent v. Employment Sec. Comm'n, 1982-NMCA-147, 99 N.M. 407, 658 P.2d 1134, 1982 N.M. App. LEXIS 977 (N.M. Ct. App. 1982), cert. quashed, 99 N.M. 226, 656 P.2d 889, 1983 N.M. LEXIS 2254 (N.M. 1983).

Treating a motion to dismiss a workmen’s compensation claim as a motion for summary judgment as required by former N.M. Stat. Ann., R. Civ. P. 12(b)(6) (now R1-012 NMRA) because matters outside the pleadings were considered by a trial court, the Court of Appeals of New Mexico determined that an employer and its insurer were entitled to summary judgment where there was no fact issue on whether ongoing settlement negotiations tolled 52-1-31 NMSA 1978, the one-year statute of limitations under the Workmen’s Compensation Act. In responding to the motion, the workmen’s compensation claimant failed to meet his burden under former N.M. Stat. Ann., R. Civ. P. 56 (now Rule 1-056 1978) of showing that a genuine issue of fact requiring a trial existed. No factual issue was shown as to the existence of a latent injury, no facts were shown to support an equitable estoppel or waiver under 52-1-36, and no facts were shown that would toll 52-1-31 NMSA 1978 based on the claimant’s continued employment. Knippel v. Northern Communications, Inc., 1982-NMCA-009, 97 N.M. 401, 640 P.2d 507, 1982 N.M. App. LEXIS 799 (N.M. Ct. App. 1982), overruled in part, Schultz v. Pojoaque Tribal Police Dep't, 2013-NMSC-013, 2013 N.M. LEXIS 113 (N.M. 2013).

Widow’s workers’ compensation complaint was not timely filed and was barred by the statute of limitations in Subsection B of this section; the limitations period began to run at the time of the worker’s death in a case involving an alleged work-related death and a worker had one year from the date of injury/death to file a claim unless the employer failed to file the written accident report pursuant to 52-1-58 and 52-1-59 NMSA 1978. Schultz v. Pojoaque Tribal Police Dep't, 2012-NMCA-015, 269 P.3d 14, 2011 N.M. App. LEXIS 133 (N.M. Ct. App. 2011), rev'd, 2013-NMSC-013, 2013 N.M. LEXIS 113 (N.M. 2013).

The limitations period that applies to original proceedings for benefits under 52-1-31A NMSA 1978, does not apply to claims for increased benefits under 52-1-56 NMSA 1978. Claims for increased benefits based on a change in the worker’s physical condition may be filed at any time during the period in which the worker could have received benefits, even though the benefits actually received were for a lesser period of time because the disability was a scheduled injury and even though those benefits had been fully paid. Henington v. Technical-Vocational Inst., 2002-NMCA-025, 131 N.M. 655, 41 P.3d 923, 2002 N.M. App. LEXIS 3 (N.M. Ct. App.), cert. denied, 131 N.M. 737, 42 P.3d 842, 2002 N.M. LEXIS 74 (N.M. 2002).

Where a worker fails to file a claim for five and one-half days of benefits within the period of limitations for filing such claims, under the de minimis principle, the statute of limitations found in 52-1-31A NMSA 1978 does not bar the worker from claiming subsequent disability benefits despite the worker’s failure to file the temporary disability claims. Fuentes v. Santa Fe Pub. Sch., 1995-NMCA-050, 119 N.M. 814, 896 P.2d 494, 1995 N.M. App. LEXIS 51 (N.M. Ct. App. 1995).

Where an employee injured herself and received benefits in late 1988; the employee worked from December 1988 to March 1991 without missing a day of work, although the employee continued to experience pain in her shoulder; the employee was referred to an orthopedic surgeon in February 1989; the employee was diagnosed with a rotator cuff tear; and the employee applied for benefits in October 1991, the statute of limitations in 52-1-31A NMSA 1978 began to run on the employee’s claim in February 1989, and the employee’s action filed more than two years and 31 days from that time was barred. Benavidez v. Bloomfield Mun. Sch., 1994-NMCA-023, 117 N.M. 245, 871 P.2d 9, 1994 N.M. App. LEXIS 22 (N.M. Ct. App. 1994).

Employee’s claim for additional workers’ compensation benefits was barred by the statute of limitations, 52-1-31A NMSA 1978 but the statute of limitations did not apply to bar an award of vocational rehabilitation benefits, which was subject to different limitations set by 52-1-50 NMSA 1978. Benavidez v. Bloomfield Mun. Sch., 1994-NMCA-023, 117 N.M. 245, 871 P.2d 9, 1994 N.M. App. LEXIS 22 (N.M. Ct. App. 1994).

Like medical benefits, vocational rehabilitation benefits are not subject to the statute of limitations contained in 52-1-31A NMSA 1978 of the workers’ compensation laws. Benavidez v. Bloomfield Mun. Sch., 1994-NMCA-023, 117 N.M. 245, 871 P.2d 9, 1994 N.M. App. LEXIS 22 (N.M. Ct. App. 1994).

Dismissal of a claimant’s request for permanent disability benefits and medical expenses due to a work-related injury was proper when the claimant failed to file her claim within one year of the incident as required under 52-1-31A NMSA 1978 and when the limitations period not tolled for the entire period that she remained working while she was partially disabled. Whittenberg v. Graves Oil & Butane Co., 1991-NMCA-142, 113 N.M. 450, 827 P.2d 838, 1991 N.M. App. LEXIS 264 (N.M. Ct. App. 1991), cert. denied, 113 N.M. 352, 826 P.2d 573, 1992 N.M. LEXIS 52 (N.M. 1992).

Where a workers’ compensation claimant filed a claim on April 13, the claim was returned to him because he already had an attorney representing him in another pending workers’ compensation action, and the claimant then filed another claim on April 19, the filing of the April 13 claim was the event which triggered the statute of limitations set forth in 52-1-31A NMSA 1978. Castillo v. Northwest Transp. Serv., 1991-NMCA-077, 113 N.M. 119, 823 P.2d 919, 1991 N.M. App. LEXIS 255 (N.M. Ct. App. 1991).

52-1-31 NMSA 1978 establishes a one-year statute of limitations for Workmen’s Compensation Act claims. Hernandez v. Levi Strauss, 1988-NMCA-075, 107 N.M. 644, 763 P.2d 78, 1988 N.M. App. LEXIS 81 (N.M. Ct. App. 1988).

Payment of a reduced installment of workers’ compensation total temporary disability triggered Subsection A as the reduced amount was a refusal or failure to make the installment and the statute of limitations began to run; the employee’s failure to file his petition for compensation within one year resulted in dismissal of his claim. Rodriguez v. X-Pert Well Serv., 1988-NMCA-046, 107 N.M. 428, 759 P.2d 1010, 1988 N.M. App. LEXIS 64 (N.M. Ct. App.), cert. denied, 107 N.M. 413, 759 P.2d 200, 1988 N.M. LEXIS 181 (N.M. 1988).

Worker’s claim was not barred by 52-1-31A NMSA 1978 where a trial court found that a worker was totally disabled from January and from March, but entered consistent findings and conclusions that the date of injury was January; thus, an appellate court read an amended complaint setting out a second, compensable injury in March, as an assertion of additional disability from March, with original occurrence of injury in January. Castillo v. Weatherly, 1988-NMCA-032, 107 N.M. 135, 753 P.2d 1323, 1988 N.M. App. LEXIS 27 (N.M. Ct. App. 1988).

Neither an employer nor its worker had to file claims against the Subsequent Injury Fund within the time limit of 52-1-31A NMSA 1978 of the Workers’ Compensation Act. Duran v. Xerox Corp., 1986-NMCA-124, 105 N.M. 277, 731 P.2d 973, 1986 N.M. App. LEXIS 706 (N.M. Ct. App. 1986).

Employer need not raise by answer the issue of whether the worker has complied with the limitation imposed by 52-1-31A NMSA 1978 of the Workers’ Compensation Act. It is not an affirmative defense waived by failure to raise it at an appropriate point. Duran v. Xerox Corp., 1986-NMCA-124, 105 N.M. 277, 731 P.2d 973, 1986 N.M. App. LEXIS 706 (N.M. Ct. App. 1986).

52-1-31A NMSA 1978 of the Workers’ Compensation Act clearly limits the time within which a worker can make a workers’ compensation claim against the employer, but does not apply to the Subsequent Injury Fund. Duran v. Xerox Corp., 1986-NMCA-124, 105 N.M. 277, 731 P.2d 973, 1986 N.M. App. LEXIS 706 (N.M. Ct. App. 1986).

That a worker’s amended complaint joining the Subsequent Injury Fund and the employer’s third-party complaint against the Fund were filed more than a year after the injury did not mean the claims were time-barred under 52-1-31A NMSA 1978 of the Workers’ Compensation Act. Duran v. Xerox Corp., 1986-NMCA-124, 105 N.M. 277, 731 P.2d 973, 1986 N.M. App. LEXIS 706 (N.M. Ct. App. 1986).

Workers’ compensation statute of limitations does not preclude a suit seeking benefits for permanent total disability where the employee had returned to work and was able to do their job without assistance; statute of limitations did not begin to run until after the employee returned to work and became unable to do his job. Romero v. General Elec. Corp., 1986-NMCA-048, 104 N.M. 652, 725 P.2d 1220, 1986 N.M. App. LEXIS 651 (N.M. Ct. App. 1986).

Where an orthopedic specialist assured a claimant that he would make a “good recovery” from a back injury and it could not have been reasonably apparent to the worker or his employer that the claimant had a latent disability, the date of the “occurrence of disability” under 52-1-31 NMSA 1978 of the Workmen’s Compensation Act, 52-1-1 to 52-1-69 NMSA 1978, was when the claimant was later advised by army doctors of the nature and seriousness of his back injury. Consequently, the statute of limitations, 52-1-31A NMSA 1978, did not bar the claimant’s application for benefits. Smith v. Dowell Corp., 1984-NMSC-091, 102 N.M. 102, 692 P.2d 27, 1984 N.M. LEXIS 1696 (N.M. 1984).

In a workmen’s compensation action, the trial court properly denied a summary judgment motion filed by the personal representative of the deceased employer, arguing that the action, which was timely filed under the Workmen’s Compensation Act, 52-1-31A NMSA 1978, was untimely filed under 45-3-803B NMSA 1978 of the Probate Code. 52-1-15 NMSA 1978 defines “employer” and includes the legal representatives of a deceased employer, while the Probate Code refers to claims against the “decedent’s estate” or the “personal representative.” Lucero v. Northrip Logging Co., 1984-NMCA-061, 101 N.M. 420, 683 P.2d 1342, 1984 N.M. App. LEXIS 688 (N.M. Ct. App. 1984).

In workers’ compensation cases, under 52-1-31A NMSA 1978 there is a two-year period of limitations provided to those who, under a contract of employment, remain employed by the employer by whom they were employed at the time of the accidental injury. Segura v. Kaiser Steel Corp., 1984-NMCA-046, 102 N.M. 535, 697 P.2d 954, 1984 N.M. App. LEXIS 659 (N.M. Ct. App. 1984).

As claimant was not barred by 52-1-31A NMSA 1978 from proceeding with his claim for compensation benefits for an accidental injury, he could recover future medical expenses and vocational rehabilitation costs. Segura v. Kaiser Steel Corp., 1984-NMCA-046, 102 N.M. 535, 697 P.2d 954, 1984 N.M. App. LEXIS 659 (N.M. Ct. App. 1984).

Workers’ compensation claimant did not contend that an extension for lack of mental capacity was stated in 52-1-31 NMSA 1978, rather, the claimant’s argument was that the New Mexico appellate courts had never specifically held that 52-1-31 NMSA 1978 did not authorize such an extension and 52-1-31 NMSA 1978  should be construed to provide such an extension; the appellate court’s answer was that 52-1-31 NMSA 1978, unambiguously states a time limitation and provides no exceptions to the limitation. Lent v. Employment Sec. Comm'n, 1982-NMCA-147, 99 N.M. 407, 658 P.2d 1134, 1982 N.M. App. LEXIS 977 (N.M. Ct. App. 1982), cert. quashed, 99 N.M. 226, 656 P.2d 889, 1983 N.M. LEXIS 2254 (N.M. 1983).

Because 37-1-10 NMSA 1978 referred to incapacitated persons, a workers’ compensation claimant contended that 37-1-10 NMSA 1978 should extend the time for a mentally incompetent person to file a compensation claim, but 37-1-10 NMSA 1978, applies to time limitations of “this chapter,” and the time limitation for filing a compensation claim set by 52-1-31 NMSA 1978 was not part of the chapter. Lent v. Employment Sec. Comm'n, 1982-NMCA-147, 99 N.M. 407, 658 P.2d 1134, 1982 N.M. App. LEXIS 977 (N.M. Ct. App. 1982), cert. quashed, 99 N.M. 226, 656 P.2d 889, 1983 N.M. LEXIS 2254 (N.M. 1983).

Employee’s claim for workers’ compensation benefits, made 22 months after termination of her employment, was properly dismissed as untimely because there was no exception, based on the evidence, to the time limitation under 52-1-31 NMSA 1978 for the employee’s alleged lack of mental capacity. Lent v. Employment Sec. Comm'n, 1982-NMCA-147, 99 N.M. 407, 658 P.2d 1134, 1982 N.M. App. LEXIS 977 (N.M. Ct. App. 1982), cert. quashed, 99 N.M. 226, 656 P.2d 889, 1983 N.M. LEXIS 2254 (N.M. 1983).

As there was no genuine factual issue of a latent injury, no issue under 52-1-36 NMSA 1978 and no issue under 52-1-59 NMSA 1978 in a workers’ compensation claimant’s case, the time period for filing a compensation claim was stated in 52-1-31 NMSA 1978. Lent v. Employment Sec. Comm'n, 1982-NMCA-147, 99 N.M. 407, 658 P.2d 1134, 1982 N.M. App. LEXIS 977 (N.M. Ct. App. 1982), cert. quashed, 99 N.M. 226, 656 P.2d 889, 1983 N.M. LEXIS 2254 (N.M. 1983).

Workers’ compensation claimant did not contend that an extension for lack of mental capacity was stated in 52-1-31 NMSA 1978, rather, the claimant’s argument was that the New Mexico appellate courts had never specifically held that 52-1-31 NMSA 1978 did not authorize such an extension and 52-1-31 NMSA 1978 should be construed to provide such an extension; the appellate court’s answer was that 52-1-31 NMSA 1978, unambiguously stated a time limitation and provided no exceptions to the limitation. Lent v. Employment Sec. Comm'n, 1982-NMCA-147, 99 N.M. 407, 658 P.2d 1134, 1982 N.M. App. LEXIS 977 (N.M. Ct. App. 1982), cert. quashed, 99 N.M. 226, 656 P.2d 889, 1983 N.M. LEXIS 2254 (N.M. 1983).

Workers’ compensation claim alleged a partial disability that manifested itself several months prior to the date the worker was discharged; deposition testimony showed that the worker knew about the asserted partial disability; and the claimant gave oral notice of a compensation claim more than one month prior to her discharge on June 19, 1979; the limitation period began to run, under the general rule, on June 20, 1979, but the compensation claim was filed April 24, 1981, so the employer made a prima facie showing that the claim was barred by the time limitation in 52-1-31 NMSA 1978. Once defendants made this showing, plaintiff had the burden of showing there was an issue defeating summary judgment. That issue must be one of a genuine material fact. Lent v. Employment Sec. Comm'n, 1982-NMCA-147, 99 N.M. 407, 658 P.2d 1134, 1982 N.M. App. LEXIS 977 (N.M. Ct. App. 1982), cert. quashed, 99 N.M. 226, 656 P.2d 889, 1983 N.M. LEXIS 2254 (N.M. 1983).

An employee’s claim for workers’ compensation benefits, made 22 months after termination of her employment, was properly dismissed as untimely because there was no tolling of the time limitation for the employee’s alleged lack of mental capacity due to depression and attempted suicide. Lent v. Employment Sec. Comm'n, 1982-NMCA-147, 99 N.M. 407, 658 P.2d 1134, 1982 N.M. App. LEXIS 977 (N.M. Ct. App. 1982), cert. quashed, 99 N.M. 226, 656 P.2d 889, 1983 N.M. LEXIS 2254 (N.M. 1983).

Where a workers’ compensation claimant was told by her employer’s insurer that she would be compensated, which may have delayed her filing of her claim, summary judgment in favor of the employer and insurer was premature because a fact issue remained as to whether claimant had cause to have filed a claim outside the one year period of 52-1-31A NMSA 1978. Additionally, the court noted that the 31-day period for paying the first installment of compensation provided in 52-1-30 NMSA 1978 has no applicability to the one year limitation period of 52-1-31A NMSA 1978. Owens v. Eddie Lu's Fine Apparel, 1980-NMCA-149, 95 N.M. 176, 619 P.2d 852, 1980 N.M. App. LEXIS 959 (N.M. Ct. App. 1980), overruled in part, Schultz v. Pojoaque Tribal Police Dep't, 2013-NMSC-013, 2013 N.M. LEXIS 113 (N.M. 2013).

Where a workers’ compensation claimant was told by her employer’s insurer that she would be compensated, which may have delayed her filing of her claim, summary judgment in favor of the employer and insurer was premature as a fact issue remained. Owens v. Eddie Lu's Fine Apparel, 1980-NMCA-149, 95 N.M. 176, 619 P.2d 852, 1980 N.M. App. LEXIS 959 (N.M. Ct. App. 1980), overruled in part, Schultz v. Pojoaque Tribal Police Dep't, 2013-NMSC-013, 2013 N.M. LEXIS 113 (N.M. 2013).

The trial court did not have authority under to limit the time within which the employee could file an application to reopen. Martinez v. Earth Resources Co., 1977-NMCA-067, 90 N.M. 590, 566 P.2d 838, 1977 N.M. App. LEXIS 628 (N.M. Ct. App. 1977).

Employee’s claim filed in October of 1972 seeking workmen’s compensation benefits for an injury suffered in December of 1969 was time-barred by the one-year statute of limitations under former 59-10-13.6, 1953 Comp. (now 52-1-31 NMSA 1978) even though the employee’s doctor did not tell him that his injury was permanent until December of 1971 because it should have been reasonably apparent to the employee after his surgery in December of 1969 that he had a compensable partial loss of the use of his elbows. The trial court properly granted the employer’s motion to dismiss under former 21-1-1(41)(b), 1953 Comp. (now Rule 1-041 NMRA). Romero v. American Furniture Co., 1974-NMCA-097, 86 N.M. 661, 526 P.2d 803, 1974 N.M. App. LEXIS 711 (N.M. Ct. App.), cert. denied, 86 N.M. 657, 526 P.2d 799, 1974 N.M. LEXIS 1448 (N.M. 1974).

In employee’s action for workers’ compensation benefits, the trial court properly granted summary judgment in favor of the employer because the employee had knowledge of permanent disability after being released from surgery and failed to file a claim within one year as required by statute of limitations. Romero v. American Furniture Co., 1974-NMCA-097, 86 N.M. 661, 526 P.2d 803, 1974 N.M. App. LEXIS 711 (N.M. Ct. App.), cert. denied, 86 N.M. 657, 526 P.2d 799, 1974 N.M. LEXIS 1448 (N.M. 1974).

Because an employee continued his employment with his employer until his hospitalization for a work-related injury, the one year tolling of the statute of limitations for filing claims for workmen’s compensation provided by former 59-10-13.6, 1953 Comp. (now 52-1-31 NMSA 1978) applied. Huerta v. New Jersey Zinc Co., 1973-NMCA-008, 84 N.M. 713, 507 P.2d 460, 1973 N.M. App. LEXIS 656 (N.M. Ct. App.), cert. denied, 84 N.M. 696, 507 P.2d 443, 1973 N.M. LEXIS 1368 (N.M. 1973).

Employee’s claim for workmen’s compensation benefits against the employer and its insurer was improperly dismissed based on limitations, because the employee was not disabled; he continued to work after his accident and, under former 59-10-13.6, 1953 Comp. (now 52-1-31 NMSA 1978), the statute of limitations on the claim did not begin to run until after he stopped working. Gomez v. Hausman Corp., 1971-NMCA-173, 83 N.M. 400, 492 P.2d 1263, 1971 N.M. App. LEXIS 781 (N.M. Ct. App. 1971), cert. denied, 83 N.M. 395, 492 P.2d 1258, 1972 N.M. LEXIS 944 (N.M. 1972).

Intermediate court judgment reversing a trial court judgment for workmen’s compensation benefits to the employee was not upheld where the intermediate court improperly weighed the evidence pertaining to whether the employee’s claim was timely under former 59-10-13.6A, 1953 Comp. (now 52-1-31 NMSA 1978), when the intermediate court should have viewed the evidence in the light most favorable to support the findings. Duran v. New Jersey Zinc Co., 1971-NMSC-083, 83 N.M. 38, 487 P.2d 1343, 1971 N.M. LEXIS 1589 (N.M. 1971).

Former 59-10-27 NMSA, 1953 Comp. (now 52-1-58 NMSA 1978) obligated the employers to file an accident report with the labor commissioner because they had notice of the compensable injury, and because they did not file a report, former 59-10-28, 1953 Comp. (now 52-1-59 NMSA 1978) extended the period in which the claimant for workmen’s compensation could bring his claim under former 59-10-13, 1953 Comp. Anaya v. Santa Fe, 1969-NMSC-025, 80 N.M. 54, 451 P.2d 303, 1969 N.M. LEXIS 1586 (N.M. 1969).

Trial court did not err in finding that a claimant’s workmen’s compensation act seeking benefits for total and permanent disability was not barred by the statute of limitations contained informer 59-10-13.6A, 1953 Comp. (now 52-1-31 NMSA 1978) where there was evidence that he was advised that the payments he was receiving were for permanent total disability and that he did not receive notice, within the year before he brought suit, that the benefits were for permanent partial disability. Baker v. Shufflebarger & Assocs., 1968-NMSC-007, 78 N.M. 642, 436 P.2d 502, 1968 N.M. LEXIS 1875 (N.M. 1968), overruled,  American Tank & Steel Corp. v. Thompson, 1977-NMSC-052, 90 N.M. 513, 565 P.2d 1030, 1977 N.M. LEXIS 1060 (N.M. 1977).

Claimant’s failure to file suit within one year after the refusal of his employer and its insurer to pay workmen’s compensation benefits as required by former 59-10-13.6, 1953 Comp. (now 52-1-31 NMSA 1978) barred his recovery. An insurance adjuster’s misstatement about the date that the last payment was made was not the type of conduct that tolled the limitations period under former 59-10-14, 1953 Comp. (now 52-1-36 NMSA 1978). Stasey v. Stasey, 77 N.M. 436, 423 P.2d 869, 1967 N.M. LEXIS 2614 (N.M. 1967), overruled in part, Schultz v. Pojoaque Tribal Police Dep't, 2013-NMSC-013, 2013 N.M. LEXIS 113 (N.M. 2013).

One-year limitation period prescribed by former 59-10-13.6, 1953 Comp. (now 52-1-31 NMSA 1978) began to run when claimant’s next regularly scheduled semi-monthly payment became payable and claimant’s employer and its insurer refused to make the payment, rather than on the date that claimant received his last payment. Jowers v. Corey's Plumbing & Heating, 1964-NMSC-226, 74 N.M. 555, 395 P.2d 827, 1964 N.M. LEXIS 2299 (N.M. 1964).

Claim to recover workmen’s compensation benefits brought on behalf of a minor child following the death of his father was time-barred under former 59-10-17, 1953 Comp. and there was no exception to the one-year limitations period under the statute where the claim was brought on behalf of a minor. Selgado v. New Mexico State Highway Dep't, 1960-NMSC-010, 66 N.M. 369, 348 P.2d 487, 1960 N.M. LEXIS 1120 (N.M. 1960).

Running of the statute of limitations under former 59-10-13, 1953 Comp. was not tolled by the pending of an appeal of a judgment that granted workmen’s compensation benefits to an injured worker; a subsequent action based on the same facts that was filed by the worker after the judgment was reversed was untimely, because it was not filed within one year after his employer failed and refused to pay compensation. Swallows v. Albuquerque, 1956-NMSC-063, 61 N.M. 265, 298 P.2d 945, 1956 N.M. LEXIS 1081 (N.M. 1956).

Statute providing that one year limitation on filing of compensation claims commenced running with failure or refusal to pay any “installment” of compensation to which workmen was entitled. Garcia v. New Mexico State Highway Dep't, 1956-NMSC-048, 61 N.M. 156, 296 P.2d 759, 1956 N.M. LEXIS 1064 (N.M. 1956).

One-year statute of limitations for filing a workers’ compensation claim for death benefits was tolled for the amount of a settlement offer where an attorney for defendants, an employer and its insurer, stated to an attorney for plaintiff widow that he would not invoke the limitations period to avoid paying that settlement offer amount. Lucero v. White Auto Stores, 1955-NMSC-104, 60 N.M. 266, 291 P.2d 308, 1955 N.M. LEXIS 1094 (N.M. 1955), overruled in part, Schultz v. Pojoaque Tribal Police Dep't, 2013-NMSC-013, 2013 N.M. LEXIS 113 (N.M. 2013).

Where a claimant did not file a claim for workmen’s compensation disability benefits after his first accident, and there was nothing substantial in the evidence to establish a latent injury increased and revealed by his second accident, the claim arising from the first accident was barred under former 59-10-13, 1953 Comp. (now 52-1-31 NMSA 1978), the statute of limitations. Letteau v. Reynolds Elec. & Eng'g Co., 1955-NMSC-103, 60 N.M. 234, 290 P.2d 1072, 1955 N.M. LEXIS 1090 (N.M. 1955).

Employee’s claim was properly denied as untimely because the employee’s injury was not latent where the employee noticed pain and swelling immediately after the accident, but delayed making a claim until a doctor told him it could become more serious. Gonzales v. Coe, 1954-NMSC-122, 59 N.M. 1, 277 P.2d 548, 1954 N.M. LEXIS 1208 (N.M. 1954).

Where an employee returned to work after an injury and was later discharged, he was not entitled to compensation for the period during which he had worked until the next semi-monthly payment after his discharge was due, and a claim prior to that was untimely because it was not the result of the employer’s failure or refusal to pay. Spieker v. Skelly Oil Co., 1954-NMSC-095, 58 N.M. 674, 274 P.2d 625, 1954 N.M. LEXIS 1178 (N.M. 1954).

Employee’s suit for compensation filed over 22 months after the accident was not barred by the limitation statute, in the workers’ compensation act because limitation did not start running until the nature and extent of the employee’s latent hand injury was diagnosed 11 months after the accident. Harlow v. Hare, 1947-NMSC-052, 51 N.M. 326, 184 P.2d 300, 1947 N.M. LEXIS 751 (N.M. 1947).

Because the claimant failed to file her claim based on the death of her worker husband from a mine accident within one year after the date of injury as required under former 1929 Code, § 156-116, her claim was properly dismissed on appeal. Vukovich v. St. Louis, Rocky Mountain & Pac. Co., 1936-NMSC-053, 40 N.M. 374, 60 P.2d 356, 1936 N.M. LEXIS 54 (N.M. 1936).

Because the employer when 31 days after the injury had elapsed had the duty to pay the first installment of the compensation due and because the employer failed or refused to pay thusly, under former Laws 1917, ch. 83, § 13, the statute of limitations of 60 days thereafter within which to make the worker’s claim began to run, and, because he missed the 60-day deadline, the worker’s claim was barred. Mumford v. State Highway Comm'n, 1931-NMSC-022, 35 N.M. 404, 1 P.2d 115, 1931 N.M. LEXIS 22 (N.M. 1931).

Claim for workers’ compensation benefits that was filed nearly two years after the decedent’s death was not time-barred under 52-1-31B NMSA 1978; because the employer had actual notice of the decedent’s injury yet failed to file a written report as required under 52-1-58 NMSA 1978, the statute of limitations was tolled. Herman v. Miners' Hosp., 1991-NMSC-021, 111 N.M. 550, 807 P.2d 734, 1991 N.M. LEXIS 108 (N.M. 1991).

The Subsequent Injury Fund (Fund) was liable for a portion of a worker’s injury, because the worker had to comply with 52-1-31A NMSA 1978; thus, evidence of the subsequent injury was available in a reasonable time; additionally under 52-1-31A the settlement between the employer and the worker did not preclude a claim against the Fund. Duran v. Xerox Corp., 1986-NMCA-124, 105 N.M. 277, 731 P.2d 973, 1986 N.M. App. LEXIS 706 (N.M. Ct. App. 1986).

Where a worker experienced ulcers related to her job for eight years, she was not entitled to compensation for permanent partial disability until she was completely unable to work pursuant to 52-1-25 NMSA 1978; the time period in which she was required to give notice under 52-1-31A NMSA 1978 began when she was unable to work. Zengerle v. Socorro, 1986-NMCA-099, 105 N.M. 797, 737 P.2d 1174, 1986 N.M. App. LEXIS 715 (N.M. Ct. App. 1986), overruled,  Whittenberg v. Graves Oil & Butane Co., 1991-NMCA-142, 113 N.M. 450, 827 P.2d 838, 1991 N.M. App. LEXIS 264 (N.M. Ct. App. 1991).

Recovery for pre-death disability benefits is not authorized by 52-1-31B NMSA 1978 of the Workmen’s Compensation Act, 52-1-1 NMSA 1978 et seq. Holliday v. Talk of the Town, 1985-NMCA-024, 102 N.M. 540, 697 P.2d 959, 1985 N.M. App. LEXIS 545 (N.M. Ct. App. 1985).

Though 52-1-31B NMSA 1978 authorized a claim for benefits for the death of a worker, the estate representative of a deceased worker was precluded from pursuing an aggravated disability claim where the deceased worker had signed a release that precluded further recovery based on the accident or injury sustained when he received an initial reward. Holliday v. Talk of the Town, 1985-NMCA-024, 102 N.M. 540, 697 P.2d 959, 1985 N.M. App. LEXIS 545 (N.M. Ct. App. 1985).

Summary judgment was improperly entered in favor of an employer with respect to an employee’s claim for workmen’s compensation benefits under the New Mexico Workmen’s Compensation Act, 52-1-1 NMSA 1978 et seq., despite a finding that the employee’s claim had been barred by his failure to timely file under 52-1-31A NMSA 1978, because questions remained with respect to when the employee discovered that there was a compensable injury. Smith v. Dowell Corp., 1984-NMSC-091, 102 N.M. 102, 692 P.2d 27, 1984 N.M. LEXIS 1696 (N.M. 1984).

Expert medical testimony that an employee’s heart attack was to a medical probability causally related to the work the employee was performing was held sufficient evidence to support that employment with the employer was causally related to the employee’s injury; New Mexico courts long recognized that a heart attack caused by employment was an accidental injury within the Workmen’s Compensation Act. Segura v. Kaiser Steel Corp., 1984-NMCA-046, 102 N.M. 535, 697 P.2d 954, 1984 N.M. App. LEXIS 659 (N.M. Ct. App. 1984).

In case of the death of a workman who would have been entitled to receive compensation if death had not occurred, a claim for compensation had to be filed on behalf of his eligible dependents to recover compensation from the employer or his insurer; under 52-1-31B NMSA 1978, the claim had to be filed within one year of death and under 52-1-46 NMSA 1978, death had to have occurred within two years of the accidental injury. Shaw v. Warner, 1984-NMCA-010, 101 N.M. 22, 677 P.2d 635, 1984 N.M. App. LEXIS 619 (N.M. Ct. App. 1984).

Widow filed a non-cognizable claim where she had waited more than a year after her husband’s death while in receipt of total disability compensation; 52-1-31 NMSA 1978 required that the claim had to be filed within one year after the date of death. Shaw v. Warner, 1984-NMCA-010, 101 N.M. 22, 677 P.2d 635, 1984 N.M. App. LEXIS 619 (N.M. Ct. App. 1984).

Under the New Mexico Workmen’s Compensation Act (Act), 52-1-30 NMSA 1978, the first installment of compensation was to be paid within a specified period from the date of the occurrence of the disability, and under 52-1-31 NMSA 1978, the one year statutory period was tolled during the time the worker remained actively employed by the employer, up to a maximum of one additional year; although the worker returned to his job after his injury, it was apparent from his post injury performance that the worker had a disability and where the worker did not file within the required time, his claim was barred. ABF Freight Sys. v. Montano, 1982-NMSC-149, 99 N.M. 259, 657 P.2d 115, 1982 N.M. LEXIS 2989 (N.M. 1982), superseded by statute as stated in Henington v. Technical-Vocational Inst., 2002-NMCA-025, 131 N.M. 655, 41 P.3d 923, 2002 N.M. App. LEXIS 3 (N.M. Ct. App. 2002).

The worker’s statutory period under the New Mexico Workmen’s Compensation Act, 52-1-31 NMSA 1978 began to run from the date it became reasonably apparent, or should have become reasonably apparent to the worker that he had an injury on account of which he was entitled to compensation and the employer failed or refuses to make payment, as such, the court found that the employee’s action was barred where he did not file within the required time period. ABF Freight Sys. v. Montano, 1982-NMSC-149, 99 N.M. 259, 657 P.2d 115, 1982 N.M. LEXIS 2989 (N.M. 1982), superseded by statute as stated in Henington v. Technical-Vocational Inst., 2002-NMCA-025, 131 N.M. 655, 41 P.3d 923, 2002 N.M. App. LEXIS 3 (N.M. Ct. App. 2002).

Trial court erred in setting the rate of the injured employee’s workers’ compensation as of the date of the hearing of the matter because in order for a court to obtain jurisdiction under 52-1-31 NMSA 1978 over a case where an injured employee’s benefits were terminated and he appealed, a termination of benefits was necessary; thus, if the date of judicial disability were applied to determine the rate of benefits, all cases would be subject to the change of rate from the date of the injury to the date of judicial determination. Sing v. Duval Corp., 1981-NMCA-129, 97 N.M. 84, 636 P.2d 903, 1981 N.M. App. LEXIS 805 (N.M. Ct. App. 1981).

Because the employee on “sick-leave” status remained employed by the employer from the date of his injury until the time of his retirement, the one-year period of limitations under former 59-10-13.6, 1953 Comp. (now 52-1-31 NMSA 1978) was tolled, and the employee’s workers’ compensation complaint was timely filed. De La Torre v. Kennecott Copper Corp., 1976-NMCA-108, 89 N.M. 683, 556 P.2d 839, 1976 N.M. App. LEXIS 629 (N.M. Ct. App. 1976).

Injured employee’s claim for workmen’s compensation was improperly dismissed, because he was not disabled as he continued to work after his accident and, thus, the one-year statute of limitations on the claim, set forth in former 59-10-13.6, 1953 Comp. (now 52-1-31 NMSA 1978), did not begin to run until he stopped working; under former 59-10-12.19, 1953 Comp., the court said, an employer could not have refused to pay compensation until the injured workmen was disabled to some extent to perform the usual tasks he was performing when injured and unable to perform any work for which he was fitted by age, education, training, general capacity, and previous work experience. Gomez v. Hausman Corp., 1971-NMCA-173, 83 N.M. 400, 492 P.2d 1263, 1971 N.M. App. LEXIS 781 (N.M. Ct. App. 1971), cert. denied, 83 N.M. 395, 492 P.2d 1258, 1972 N.M. LEXIS 944 (N.M. 1972).

Where a worker was able to return to his former job after surgery, was laid off, and then required a subsequent back operation, a trial court’s dismissal of the second disability claim under former 59-10-13.6, 1953 Comp. (now 52-1-31 NMSA 1978) of the workmen’s compensation law, because it was not filed within one-year and 31 days of the first claim, was erroneous because the worker was not statutorily disabled where he could return to his job at the same rate of pay. Rayburn v. Boys Super Mkt., Inc., 1964-NMSC-201, 74 N.M. 712, 397 P.2d 953, 1964 N.M. LEXIS 2331 (N.M. 1964).

Notice and timely filing requirements of former 59-10-13.6, 1953 Comp. (now 52-1-31 NMSA 1978) were mandatory, if the injured employee did not give notice as required by former 59-10-13.4, 1953 Comp. (now 52-1-29 NMSA 1978) or failed to file his claim within the time required by statute, all of his claims and right to recovery would be barred. State ex rel. Kermac Nuclear Fuels Corp. v. Larrazolo, 1962-NMSC-134, 70 N.M. 475, 375 P.2d 118, 1962 N.M. LEXIS 1628 (N.M. 1962).

Where the first proceeding for the recovery of workmen’s compensation is dismissed for being prematurely filed and the second one is filed more than a year after failure or refusal to make payment of compensation when due, the later action is barred. Fresquez v. Farnsworth & Chambers Co., 238 F.2d 709, 1956 U.S. App. LEXIS 4088 (10th Cir. N.M. 1956).