52-1-36.  Effect of failure of worker to file claim by reason of conduct of employer.

Applicability.

Construction.

Construction with other law.

Evidence.

           —Insufficient.

Summary judgment.

Time limitations.

Workers’ compensation.

Court rejected minor’s contention that the statute of limitations was tolled by the employer’s fraud or misrepresentation in telling the minor’s father that the minor’s injury was not covered by workers’ compensation; the only circumstance which excuses the failure to file a timely claim is where the employer misleads a worker into believing compensation will be paid, former 59-10-14, 1953 Comp. (now 52-1-36 NMSA 1978). Howie v. Stevens, 1984-NMCA-052, 102 N.M. 300, 694 P.2d 1365, 1984 N.M. App. LEXIS 660 (N.M. Ct. App. 1984), overruled in part, Schultz v. Pojoaque Tribal Police Dep't, 2013-NMSC-013, 2013 N.M. LEXIS 113 (N.M. 2013).

The voluntary payment of compensation benefits pursuant to the law of another state, in itself, does not toll the time to sue provision of 52-1-65 NMSA 1978. Ryan v. Bruenger M. Trucking, 1983-NMCA-043, 100 N.M. 15, 665 P.2d 277, 1983 N.M. App. LEXIS 706 (N.M. Ct. App. 1983), overruled in part, Schultz v. Pojoaque Tribal Police Dep't, 2013-NMSC-013, 2013 N.M. LEXIS 113 (N.M. 2013).

Although 37-1-24 NMSA 1978 provided municipalities with protection with respect to the reduction of the time period in which one was permitted to file a claim against it, where a representative of a municipal employer informed employees that the their action could have been resolved without litigation and the employees relied upon that statement and did not file their action, pursuant to 52-1-36 NMSA 1978 they were entitled to file their action. Molinar v. Carlsbad, 1987-NMSC-032, 105 N.M. 628, 735 P.2d 1134, 1987 N.M. LEXIS 3570 (N.M. 1987).

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 R1-056 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 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).

Where the conduct of the insurer may have reasonably led claimant to believe compensation benefits would be paid in spite of filing after the one year limitations period, pursuant to 52-1-36 NMSA 1978, the insurer failed to show that no genuine issue of fact existed as to this issue, thus their trial court summary judgment was reversed and remanded for trial on appellate review. 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).

Claim of a Texas resident who was injured while working on a temporary job in New Mexico, which was filed within one year after the claimant’s employer and its insurer ceased making voluntary payments but more than a year after the claimant was injured, was timely filed because the voluntary payments were sufficient under 52-1-36 NMSA 1978 to toll the filing requirements of 52-1-65 NMSA 1978. Saenz v. McCormick Constr. Co., 1981-NMCA-025, 95 N.M. 609, 624 P.2d 551, 1981 N.M. App. LEXIS 704 (N.M. Ct. App. 1981), overruled in part, Schultz v. Pojoaque Tribal Police Dep't, 2013-NMSC-013, 2013 N.M. LEXIS 113 (N.M. 2013).

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).

If an employer leads an employee to believe that he is considered in “employment” for workers’ compensation purposes, or if it becomes reasonably apparent to the employee that he is considered in “employment” and is entitled to compensation, the statute of limitations is tolled. Where an employee was technically carried in his employer’s records until his date of employment and received weekly benefits under the employer’s weekly benefit plan, he remained employed for workers’ compensation purposes and the statute of limitations was tolled. 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).

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).

Injured worker’s refusal to accept a check from his employer’s compensation carrier as a compromise settlement and the payment of medical expenses that had accrued up to that date did not extend the limitations imposed by former 59-10-14, 1953 Comp. (now 52-1-36 NMSA 1978), because the claim had become barred by the provisions of former 59-10-13, 1953 Comp., where the check was offered by the insurance carrier and refused by the worker more than one year after his accident and injury occurred. West v. Valley Sales & Serv. Co., 1959-NMSC-068, 66 N.M. 149, 343 P.2d 1038, 1959 N.M. LEXIS 950 (N.M. 1959).

Although defendant insurer had begun to pay workmen’s compensation benefits to plaintiff claimant, the payments had been stopped for more than a year before the claimant filed an action, and, in an appeal by the claimant from a trial court’s dismissal of the action as to defendant insurer on the ground that his claim was barred by the one year statute of limitations, the Supreme Court of New Mexico determined that the limitation began to run when there had been a failure or refusal to pay any “installment” of compensation to which the claimant was entitled, “installment” meant the semi-monthly benefits established under the New Mexico Workmen’s Compensation Act and not medical payments, and neither the payment of medical benefits nor the making of an offer of settlement, which allegedly led the claimant to believe compensation would be paid, tolled the limitation. 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).

In a widow’s action against the employer for workmen’s compensation death benefits after her husband died in a gas explosion while at work, the statute of limitations for filing the claim was tolled under for the amount of a settlement offer where the defense attorney agreed to not invoke the limitations statute to avoid paying the settlement 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 who resided in Texas and was injured in New Mexico gave notice to his employer and filed a claim for workmen’s compensation in Texas and the employer’s insurer made voluntary payments, the claimant’s suit for compensation in New Mexico, which was filed more than a year after his injury, but within a year after the payments stopped, was timely filed because the insurer’s voluntary payments were sufficient under 52-1-36 NMSA 1978 to toll the filing requirements of 52-1-65 NMSA 1978. Saenz v. McCormick Constr. Co., 1981-NMCA-025, 95 N.M. 609, 624 P.2d 551, 1981 N.M. App. LEXIS 704 (N.M. Ct. App. 1981), overruled in part, Schultz v. Pojoaque Tribal Police Dep't, 2013-NMSC-013, 2013 N.M. LEXIS 113 (N.M. 2013).

In a workman’s compensation action, the conduct of an employer that will toll the one-year period provided by the statute of limitations, 59-10-13, 1953 Comp. (52-1-31 NMSA 1978), must be such as to reasonably lead the person or persons entitled to compensation to believe the compensation would be paid; therefore, the tolling provisions of 59-10-14, 1953 Comp. (52-1-36 NMSA 1978) were held not to apply where an employee was told by his employer explicitly on at least two occasions that he would no longer receive workman’s compensation benefits and, in fact, did not receive them in his paycheck after that point. Silva v. Sandia Corp., 246 F.2d 758, 1957 U.S. App. LEXIS 3628 (10th Cir. N.M. 1957).