2023 New Mexico Statutes › Chapter 52 - Workers' Compensation › Article 1 - Workers' Compensation › Section 52-1-36 - Effect of failure of worker to file claim by reason of conduct of employer.

The failure of any person entitled to compensation under the Workers' Compensation Act to give any notice or file any claim within the time fixed by the Workers' Compensation Act shall not deprive such person of the right to compensation where the failure was caused in whole or in part by the conduct of the employer or insurer which reasonably led the person entitled to compensation to believe the compensation would be paid.
History:
Laws 1937, ch. 92, § 13; 1941 Comp., § 57-914; 1953 Comp., § 59-10-14; Laws 1959, ch. 67, § 15; 1986, ch. 22, § 9; 1989, ch. 263, § 20.
ANNOTATIONS
Cross references.
— For effect of failure to give required notice or to file claim within time allowed,
see
52-1-31 NMSA 1978.
Statute is neither a tolling nor an equitable estoppel statute.
— Section 52-1-36 NMSA 1978 is neither a tolling nor an equitable estoppel statute. If an employee entitled to workers' compensation benefits fails to file a complaint or a claim within the limitation period because the conduct of the employer or insurer reasonably led the employee to believe compensation would be paid, then the employee has a reasonable time thereafter within which to file.
Schultz v. Pojoaque Tribal Police Dep't
, 2013-NMSC-013,
rev'g
2012-NMCA-015, 269 P.3d 14.
Where, from the time of the worker's death, the employer assured the worker's spouse that the employer would take care of everything for the spouse; the employer filed a claim for federal death benefits for the spouse; when the employer and the employee became aware that the worker might be entitled to workers' compensation benefits, the employer told the spouse that the employer would prepare a claim for workers' compensation benefits and subsequently reassured the spouse that the employer would pursue a claim for the spouse; and when the spouse became aware that the employer was not going to file a claim, the spouse filed a complaint on the same day, forty-five days after the one-year statute of limitations had run, the spouse's complaint was timely because, within the meaning of Section 52-1-36 NMSA 1978, the spouse could reasonably rely on the representations of the employer that a worker's compensation claim would be filed and that benefits would be paid and because the spouse's complaint was filed within a reasonable time after the spouse learned that the employer had not filed a complaint.
Schultz v. Pojoaque Tribal Police Dep't
, 2013-NMSC-013,
rev'g
2012-NMCA-015, 269 P.3d 14.
Misrepresentation that employee will receive benefits is only reason workmen's (workers') compensation limitation period is tolled.
Howie v. Stevens
, 1984-NMCA-052, 102 N.M. 300, 694 P.2d 1365, cert. quashed, 102 N.M. 293, 694 P.2d 1358 (1985).
Conduct of employer lulling employee excused failure to file.
— Where facts support an inference that the payments were not knowingly received under the Utah law so as to bar the action, the conduct of employers having lulled employee into a feeling of security as to his being entitled to compensation under New Mexico law, their conduct excused employee's failure to file the claim within one year after the right to compensation arose.
Reed v. Fish Eng'g Corp.
, 1966-NMSC-183, 76 N.M. 760, 418 P.2d 537.
Insurance agent's misinformation did not toll statute.
— Claimant's claim to workmen's (workers') compensation benefits was barred by statutory limitation when complaint was filed more than one year after employer's discontinuation of payments, and insurance agent's misinforming claimant of latest date payments covered did not act to toll the section.
Stasey v. Stasey
, 1967-NMSC-005, 77 N.M. 436, 423 P.2d 869.
Statute requires not only that claimant be led to believe that
compensation would be paid but this belief must cause him to delay the filing beyond the statutory period in order for claimant to avoid the statute of limitations for filing.
Lasater v. Home Oil Co.
, 1972-NMCA-031, 83 N.M. 567, 494 P.2d 980,
overruled on other grounds by
Schiller v. Sw. Air Rangers, Inc.
, 1975-NMSC-018, 87 N.M. 476, 535 P.2d 1327.
Where compensation insurer's adjuster advised injured workman (worker) that
he had a legitimate claim which would be acted upon as soon as investigation was completed, the workman's (worker's) failure to sue within the time prescribed by the act was excused.
Elsea v. Broome Furniture Co.
, 1943-NMSC-036, 47 N.M. 356, 143 P.2d 572.
Course of conduct, not specific communication, is the dispositive inquiry
in deciding whether the statute of limitations has been tolled by employer's or insurer's conduct. Although such course of conduct during the relevant time period is of crucial significance, the conduct may be inferred from actions occurring both before and after the period of time during which the statute would have run otherwise.
Hutcherson v. Dawn Trucking Co.
, 1988-NMCA-051, 107 N.M. 358, 758 P.2d 308.
Where compensation insurer's conduct had reasonably led claimant to believe that
compensation would be paid and liability was not denied until after statutory time for filing suit had elapsed, supreme court was not disposed to set any specific time within which the action must be filed short of one year after the date on which liability was first denied.
Elsea v. Broome Furniture Co.
, 1943-NMSC-036, 47 N.M. 356, 143 P.2d 572.
Compensation insurer's conduct.
— Where the conduct of an insurer, in a workmen's (workers') compensation action, may have reasonably led the claimant to believe compensation benefits would be paid, the insurer has failed to show that no genuine issue of fact exists as to the tolling of the statute of limitations.
Owens v. Eddie Lu's Fine Apparel
, 1980-NMCA-149, 95 N.M. 176, 619 P.2d 852.
Conduct did not mislead claimant.
— Where on two occasions employer expressly informed claimant that he would not receive any more workmen's (workers') compensation benefits, and claimant worked for employer after such time, sometimes regularly and sometimes irregularly and from time to time he received sick leave and vacation pay, but at no time during that period did he receive any workmen's (workers') compensation benefits, and he knew that fact and continued employment under those circumstances, as a matter of law, did not constitute conduct which would reasonably lead claimant to believe that he would be paid workmen's (workers') compensation benefits.
Silva v. Sandia Corp.
, 246 F.2d 758 (10th Cir. 1957).
Limitation not avoided where no evidence of misleading.
— Where there was no evidence in the record that the plaintiff had in any way been led to believe that compensation benefits would be paid, court's finding that the statute of limitations on filing had been avoided was in error.
Lasater v. Home Oil Co.
, 1972-NMCA-031, 83 N.M. 567, 494 P.2d 980,
overruled on other grounds by
Schiller v. Sw. Air Rangers, Inc.
, 1975-NMSC-018, 87 N.M. 476, 535 P.2d 1327.
Payments made and accepted could effectively lull claimant into reasonable feeling of security
as to his being entitled to compensation under New Mexico law as would continued voluntary payment of wages, and would accordingly be conduct excusing the filing of the claim within one year after the right to compensation arose.
Reed v. Fish Eng'g Corp.
, 1964-NMSC-042, 74 N.M. 45, 390 P.2d 283,
aff'd
, 1966-NMSC-183, 76 N.M. 760, 418 P.2d 537.
Immaterial that other factors contributed to delay.
— As long as claimant's delay in suing was caused in part by conduct of employer and compensation insurer, the fact that other considerations also contributed to claimant's delay was immaterial in view of the statutory provision that it is necessary only to connect claimant's delay in whole or in part with the conduct of the employer or insurer to excuse failure to file within the statutory period.
Elsea v. Broome Furniture Co.
, 1943-NMSC-036, 47 N.M. 356, 143 P.2d 572.
Negotiations do not bar running of statute of limitations.
— Mere negotiations, without more, are insufficient as a matter of law to estop an assertion of the statute of limitations as a bar.
Knippel v. N. Commc'ns, Inc.
, 1982-NMCA-009, 97 N.M. 401, 640 P.2d 507.
Claims for amounts greater than settlement offer.
— This section held to be only applicable to amount offered in settlement and claims for a greater amount under the section are time barred, as the only compensation the defendants led anyone to believe would be paid was the settlement offer made by defendant; therefore, failure to bring suit for a greater amount under the act was not caused by actions of defendant-employer.
Lucero v. White Auto Stores, Inc.
, 1955-NMSC-104, 60 N.M. 266, 291 P.2d 308.
Compromise offer not extend limitation period.
— Where employer's insurance company makes an offer of $200 in December 1956, as a compromise settlement and the payment of medical expenses for an alleged injury in September 1955, such offer does not extend the one-year statute of limitations and so bars a claim for such injuries filed on November 27, 1957.
West v. Valley Sales & Serv. Co.
, 1959-NMSC-068, 66 N.M. 149, 343 P.2d 1038.
Employee though on sick leave layoff status.
— Where the plaintiff ceased actual work with his employer and went on sick leave layoff status on May 16, 1974, receiving weekly benefits under a weekly benefit plan for nonjob related disability, and remained an employee to the extent that when his illness was terminated and he was well enough to return to work, he would be returned to his regular employment, and up to the date of his retirement on April 1, 1975, he was technically carried in the company records as an employee, the facts established that plaintiff remained in employment until April 1, 1975, as a matter of law, and thus his claim was not barred by the statute of limitations.
De La Torre v. Kennecott Copper Corp.
, 1976-NMCA-108, 89 N.M. 683, 556 P.2d 839.
Sufficiency of notice.
— While a casual statement of the injury by employee to his employer is not enough to satisfy requirement of notice, the employee is not required to anticipate the results which will flow from the injury when he does not know at the time what the results will be.
Elsea v. Broome Furniture Co.
, 1943-NMSC-036, 47 N.M. 356, 143 P.2d 572.
Failure to give notice is excused where
employee had no knowledge of the true seriousness of his injury and expert medical attention was necessary to establish causal relation between the injury and the result flowing therefrom.
Elsea v. Broome Furniture Co.
, 1943-NMSC-036, 47 N.M. 356, 143 P.2d 572.
Tolling of period to sue under Section 52-1-65 NMSA 1978.
— Voluntary payment of compensation benefits pursuant to the law of another state is not in itself sufficient to toll the filing requirements of Section 52-1-65 NMSA 1978; tolling of the time to sue provision depends upon whether a worker was reasonably led to believe that New Mexico compensation would be paid.
Ryan v. Bruenger M. Trucking
, 1983-NMCA-043, 100 N.M. 15, 665 P.2d 277, cert. denied, 100 N.M. 53, 665 P.2d 809.
Time is tolled for beginning of payments until
the employer is notified pursuant to the act that the employee is claiming compensation resulting from the accident.
Swallows v. City of Albuquerque
, 1955-NMSC-042, 59 N.M. 328, 284 P.2d 216,
aff'd
, 61 N.M. 265, 298 P.2d 945.
Reference in testimony treated as explanatory of delay.
— A reference made by the claimant and his attorney to cost of employing counsel as part of direct examination, was treated as explanatory of claimant's delay in bringing suit and it was not under the circumstances prejudicial to the employer and insurer.
Elsea v. Broome Furniture Co.
, 1943-NMSC-036, 47 N.M. 356, 143 P.2d 572.
Reference in testimony cured by court's direction to jury.
— If reference was erroneously made by claimant and his attorney to cost of employing counsel as explanatory of claimant's delay in bringing suit and as to reasonableness of claimant's failure to employ counsel during the negotiations, the error was cured by the court's direction to the jury to disregard statements about the attorney fees and similar matters.
Elsea v. Broome Furniture Co.
, 1943-NMSC-036, 47 N.M. 356, 143 P.2d 572.
Am. Jur. 2d, A.L.R. and C.J.S. references. —
Validity of provision invalidating contract of employee to waive right to compensation, 84 A.L.R. 1297.
100 C.J.S. Workmen's Compensation Acts §§ 450 to 456, 469 to 479.