A. If an employer or his insurer fails or refuses to pay a worker any installment of compensation to which the worker is entitled under the Workers' Compensation Act, after notice has been given as required by Section 52-1-29 NMSA 1978, it is the duty of the worker insisting on the payment of compensation to file a claim therefor as provided in the Workers' Compensation Act not later than one year after the failure or refusal of the employer or insurer to pay compensation. This one-year period of limitations shall be tolled during the time a worker remains employed by the employer by whom he was employed at the time of such accidental injury, not to exceed a period of one year. If the worker fails to give notice in the manner and within the time required by Section 52-1-29 NMSA 1978 or if the worker fails to file a claim for compensation within the time required by this section, his claim for compensation, all his right to the recovery of compensation and the bringing of any proceeding for the recovery of compensation are forever barred.

B. In case of the death of a worker who would have been entitled to receive compensation if death had not occurred, claim for compensation may be filed on behalf of his eligible dependents to recover compensation from the employer or his insurer. Payment may be received or claim filed by any person whom the director or the court may authorize or permit on behalf of the eligible beneficiaries. No claim shall be filed, however, to recover compensation benefits for the death of the worker unless he or someone on his behalf or on behalf of his eligible dependents has given notice in the manner and within the time required by Section 52-1-29 NMSA 1978 and unless the claim is filed within one year from the date of the worker's death.

History: 1953 Comp., § 59-10-13.6, enacted by Laws 1959, ch. 67, § 10; 1963, ch. 269, § 6; 1967, ch. 151, § 1; 1986, ch. 22, § 8; 1987, ch. 235, § 15.

Cross references. — For effect of failure of worker to file claim or bring suit by reason of conduct of employer, see 52-1-36 NMSA 1978.

I. GENERAL CONSIDERATION.

This section and Section 52-1-46 NMSA 1978 must be read and applied together and do not provide two separate and unrelated methods by which dependents may obtain benefits on the basis of the death of a worker. Shaw v. Warner, 1984-NMCA-010, 101 N.M. 22, 677 P.2d 635, cert. denied, 101 N.M. 11, 677 P.2d 624.

Applicability to Subsequent Injury Act. — The one-year period of limitations in the Workers' Compensation Act was not applicable by operation of former Section 52-2-12 NMSA 1978, to a claim for reimbursement against the Subsequent Injury Fund. Hernandez v. Levi Strauss, Inc., 1988-NMCA-075, 107 N.M. 644, 763 P.2d 78, cert. denied sub nom. Chavez v. Levi Strauss, Inc., 107 N.M. 673, 763 P.2d 689 (decided under law existing prior to 1988 enactment of Section 52-2-14 NMSA 1978).

Minor not deprived of due process by application of limitation period. 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).

Section does not apply where the action against insurance agency was one for damages for its negligent conduct in failing to secure the coverage agreed upon; the section limiting the time for filing the action under the Workmen's (Workers') Compensation Act does not apply. Jernigan v. New Amsterdam Cas. Co., 1964-NMSC-044, 74 N.M. 37, 390 P.2d 278.

Vocational rehabilitation benefits not subject to section. — Like medical benefits, vocational rehabilitation benefits are not subject to the statute of limitations contained in Subsection A. The limitations imposed on the receipt of vocational rehabilitation benefits are only those contained in former Section 52-1-50 NMSA 1978 (now Section 52-1-50.1 NMSA 1978). Benavidez v. Bloomfield Mun. Sch., 1994-NMCA-023, 117 N.M. 245, 871 P.2d 9.

Burden of proof of defense of accord and satisfaction in workmen's (workers') compensation proceeding was upon defendants, and the failure of the trial court to make the finding must be considered as a finding against the defendants. Baker v. Shufflebarger & Assocs., Inc., 1968-NMSC-007, 78 N.M. 642, 436 P.2d 502.

Rule of civil procedure applicable. — Rule 6, N.M.R. Civ. P. (now Rule 1-006 NMRA), providing the method of computation of time, should be applicable generally to the Workmen's (Workers') Compensation Law. Keilman v. Dar Tile Co., 1964-NMSC-138, 74 N.M. 305, 393 P.2d 332.

Late filing has no affect upon plaintiff's medical expenses since the limitation provision of Subsection A does not apply to them. 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.

Time limitation applies only to worker's claim against his employer or insurance carrier, and not to claims against the 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, cert. denied, sub nom. Jasso v. Duran, 105 N.M. 290, 731 P.2d 1334.

Limitation does not apply to modification of benefits. — This section applies to initial claims for benefits, not to later claims for increased benefits based on a change in the worker's physical condition. Henington v. Technical-Vocational Inst., 2002-NMCA-025, 131 N.M. 655, 41 P.3d 923, cert. denied, 131 N.M. 737, 42 P.3d 842.

Trial by jury on workmen's (workers') compensation issue. — Where the court was alerted to the fact that the claimant wished to present a workmen's (workers') compensation issue to a jury for their determination, and under statute as it existed at the time, claimant was entitled to a jury trial and to have the jury pass upon disputed questions of fact, for the trial court to determine the issue on the basis only of the claim and claimant's discovery deposition, in effect, prevented the plaintiff from having a trial by jury. Armijo v. United States Cas. Co., 1960-NMSC-122, 67 N.M. 470, 357 P.2d 57.

Where failure of trial court to announce finding on issue of statute of limitations, the court assumed that the action was not timely filed. Baker v. Shufflebarger & Assocs., Inc., 1966-NMSC-189, 77 N.M. 50, 419 P.2d 250.

Harmless error where claimant not entitled to recover. — Where trial court disallowed plaintiff's claim because the disability was not the natural and direct result of the accident, which, on appeal, is supported by the evidence, and claimant was properly denied any compensation in the trial court, to reverse and remand because the trial court was in error in its finding that plaintiff's claim was barred by the statute of limitations would be meaningless, because claimant is not entitled to recover. The error of the trial court is harmless. Salazar v. Lavaland Heights Block Co., 1965-NMSC-049, 75 N.M. 211, 402 P.2d 948.

Statute of limitations not applicable to provisions concerning safety devices. — Although this statute of limitations is jurisdictional and need not be raised as an affirmative defense, it nevertheless does not apply to the statutory penalty section relating to increase or reduction in compensation for failure to supply safety devices (Section 52-1-10 NMSA 1978). Garza v. W.A. Jourdan, Inc., 1977-NMCA-136, 91 N.M. 268, 572 P.2d 1276, cert. denied, 91 N.M. 249, 572 P.2d 1257.

Subsection B does not authorize recovery for predeath disability benefits. Holliday v. Talk of Town, Inc., 1985-NMCA-024, 102 N.M. 540, 697 P.2d 959.

Employer's obligation to pay compensation depends on whether plaintiff had disability as defined in Sections 52-1-24 and 52-1-25 NMSA 1978 (now Sections 52-1-25 and 52-1-26 NMSA 1978) . Cordova v. Union Baking Co., 1969-NMCA-037, 80 N.M. 241, 453 P.2d 761.

Vocational rehabilitation benefits suit not precluded. — Employee was not precluded from maintaining a suit to recover vocational rehabilitation benefits on the alleged ground that he did not, prior to commencing the suit, seek such benefits nor was he refused them before commencing the suit. Maitlen v. Getty Oil Co., 1987-NMCA-002, 105 N.M. 370, 733 P.2d 1.

Compensation claim files are public records. — The worker's compensation division maintains worker's compensation claim files in the course of its statutory function of adjudicating claims filed by workers, which makes them public records within the meaning of state freedom of information laws. 1988 Op. Att'y Gen. No. 88-16.

II. CLAIMS FOR BENEFITS.

Statute of limitations jurisdictional. — The statute of limitations in workmen's (workers') compensation cases affects the right of action and is jurisdictional, with the burden on the claimant to prove compliance therewith; however, the claimant must not necessarily allege compliance in the first instance. Armijo v. United States Cas. Co., 1960-NMSC-122, 67 N.M. 470, 357 P.2d 57.

The limitations statute, as to workmen's (workers') compensation, is what has frequently been termed a jurisdictional matter, and the burden is on the claimant to prove compliance therewith. Baker v. Shufflebarger & Assocs., Inc., 1966-NMSC-189, 77 N.M. 50, 419 P.2d 250; Linton v. Mauer-Neuer Meat Packers, 1963-NMSC-013, 71 N.M. 305, 378 P.2d 126.

The limitation of time for filing is a condition precedent to the right to maintain the action, and as this limitation provision is jurisdictional, it may not be waived. Garza v. W.A. Jourdan, Inc., 1977-NMCA-136, 91 N.M. 268, 572 P.2d 1276, cert. denied, 91 N.M. 249, 572 P.2d 1257.

Statute of limitations, underpayment. — This section is unquestionably a statute of limitations for disability benefit claims. Nothing in the statute suggests the applicability of the limitations period depends upon the legal theory forming the claim's basis. Additionally, although an employer or insurer "fails" to pay an installment of compensation if the amount paid "falls short" of the amount due, the worker cannot wait until other claims ripen before filing a claim for this deficiency. Coslett v. Third St. Grocery, 1994-NMCA-046, 117 N.M. 727, 876 P.2d 656, cert. denied, 117 N.M. 802, 877 P.2d 1105.

Claim for death benefits in the case of a hospital nurse who died of a heart attack was not time barred, where the hospital had actual notice of the compensable injury, yet failed to file a written report as required. Herman v. Miners' Hosp., 1991-NMSC-021, 111 N.M. 550, 807 P.2d 734.

Claim for death benefits by employer. — An employer had standing to initiate a worker's compensation action for death benefits on behalf of its employee. Eldridge v. Circle K Corp., 1997-NMCA-022, 123 N.M. 145, 934 P.2d 1074, cert. denied, 122 N.M. 808, 932 P.2d 498.

Claimant must not necessarily allege compliance in the first instance, as it is a matter of proof, not formality of pleading. Whether a claim is timely filed, or whether good cause exists for delay, are questions of fact and only become questions of law where the facts are not in dispute. Linton v. Mauer-Neuer Meat Packers, 1963-NMSC-013, 71 N.M. 305, 378 P.2d 126.

Timely filing of claim. — Worker's claim was effectively filed for purposes of statute of limitations on the day he initially filed his claim pro se with the clerk's office, even though the clerk voided that filed claim on the grounds that the claimant had an attorney representing him in another pending action before the division. The subsequent filing by claimant's counsel as a result of the clerk's action did not become the date of filing for statute of limitations purposes. Castillo v. Northwest Transp. Serv., 1991-NMCA-077, 113 N.M. 119, 823 P.2d 919.

Timely filing of claim as question of fact. — Whether a claim for compensation was timely filed or whether good cause exists for the delay in the filing are ordinarily questions of fact, and may become questions of law only where the facts are not in dispute. Armijo v. United States Cas. Co., 1960-NMSC-122, 67 N.M. 470, 357 P.2d 57; Pena v. N.M. Hwy. Dep't, 1983-NMCA-111, 100 N.M. 408, 671 P.2d 656.

Lulling claimant into feeling of security as conduct excusing filing. — Payments made and accepted could just as effectively lull claimant into a 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.

No evidence claimant led to believe compensation would be paid. — 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.

If employer led employee to believe that he was considered in "employment" for workmen's (workers') compensation, or if it became reasonably apparent to plaintiff that he was considered in "employment" and was entitled to compensation, the section was tolled. De La Torre v. Kennecott Copper Corp., 1976-NMCA-108, 89 N.M. 683, 556 P.2d 839.

Employer's conduct lulling claimant into security excused his 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 defendants having lulled plaintiff into a feeling of security as to his being entitled to compensation under New Mexico law, their conduct excused plaintiff'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.

When employer is deemed to have failed to make payment. — At the point it becomes or should become reasonably apparent to the worker that workmen's (workers') compensation benefits are owed, the employer, by not doing anything, fails to make payment. ABF Freight Sys. v. Montano, 1982-NMSC-149, 99 N.M. 259, 657 P.2d 115.

Workman (Worker) on notice when suffered partial loss of use of member. — Whether or not he can continue in his prior employment, a workman (worker) is put on notice of a compensable scheduled injury when it becomes or should reasonably become apparent to him that he suffered "a partial loss of use" of the scheduled body member. Romero v. American Furniture Co., 1974-NMCA-097, 86 N.M. 661, 526 P.2d 803, cert. denied, 86 N.M. 657, 526 P.2d 799.

Mere fact he did not know full extent of his injury from a medical standpoint did not excuse him from filing his claim. Gonzales v. Coe, 1954-NMSC-122, 59 N.M. 1, 277 P.2d 548 (decided under former law).

Worker suffering from pain knows of disability. — Although a worker did not request assistance with her duties, she suffered from pain, took medication, was under a doctor's care, and was referred to an orthopedic surgeon on February 27, 1989, for a continuing problem with her right shoulder. Although the worker did not testify that she requested a transfer on February 13, 1989, to a smaller work area because of her shoulder pain, it was reasonable for the judge to infer that her pain was a factor in the request. These facts were substantial evidence to support the judge's decision that the worker knew or reasonably should have known she had a disability on or before February 27, 1989. Benavidez v. Bloomfield Mun. Sch., 1994-NMCA-023, 117 N.M. 245, 871 P.2d 9.

All injuries producing compensable disability and subsequently becoming more serious should be treated alike and the same rule applied to all of them. It is not meant that a workman (worker) will lose the statutory benefit unless he files claim for a noncompensable injury which he has no reason to believe will result in a serious and compensable injury. Nor does it mean that he can disregard a compensable injury and wait until permanent incapacity results therefrom before he is obliged to file his claim. As soon as it becomes reasonably apparent, or should become reasonably apparent, to a workman (worker) that he has an injury on account of which he is entitled to compensation and the employer fails or refuses to make payment, he has a right to file a claim and the statute begins to run from that date. Noland v. Young Drilling Co., 1968-NMCA-068, 79 N.M. 444, 444 P.2d 771.

Informing supervisor at time of injury. — An employer had adequate notice of a compensable injury where the claimant told his supervisor, at the time he was fitted for hearing aids, that his hearing loss was work-related. The statute of limitations was tolled by the employer's subsequent failure to file a report of the accident. Cisneros v. Molycorp, Inc., 1988-NMCA-080, 107 N.M. 788, 765 P.2d 761, cert. denied, 107 N.M. 785, 765 P.2d 758 (decided under pre-1987 version of Section 52-1-58 NMSA 1978).

Failure to notify employer as bar to recovery. — Present knowledge of injury to shoulder entitling claimant to compensation, and known to him during four months or more when he was without work because of the condition, but at no time communicated to employer, was in fact and law a failure to timely comply with the provisions of Section 52-1-29 NMSA 1978 and barred recovery under this section. Roberson v. Powell, 1967-NMSC-131, 78 N.M. 69, 428 P.2d 471.

If plaintiff gave no notice as required by Section 52-1-29 NMSA 1978 or failed to file his claim within one year after relator failed or refused to pay compensation as required by the section, all of plaintiff's "claim for the recovery of compensation, all his right to the recovery of compensation and the bringing of any legal proceeding for the recovery of compensation" would be barred and the same is true if the case was prematurely filed. State ex rel. Kermac Nuclear Fuels Corp. v. Larrazolo, 1962-NMSC-134, 70 N.M. 475, 375 P.2d 118.

Notice as a condition precedent. — Notice, where required, is a condition precedent to recovery, and is a mandatory requirement upon which the right of action rests, and this knowledge (of the existence of a compensable injury) which the section requires means more than just putting upon inquiry and involves more than knowledge of the mere happening of an accident. Sanchez v. Bernalillo Cnty., 1953-NMSC-038, 57 N.M. 217, 257 P.2d 909 (decided under former law).

Where there is possible case of latent injury, the trial court should listen to all the evidence and should not determine as a matter of law that the claim could not be presented. Linton v. Mauer-Neuer Meat Packers, 1963-NMSC-013, 71 N.M. 305, 378 P.2d 126.

Claim not precluded where injection enabled worker to return to work. — Where, whatever the doctor's prior diagnosis, an injection enabled worker to fully do his work after his return to work, because the record substantially indicates that worker was able to fully perform his job duties, it is clear that the trial court could have determined that he was not disabled and there is substantial evidence to support the ultimate findings of the trial court on the question of statute of limitations. The trial court will be affirmed in its determination that Subsection A did not operate to preclude the worker's subsequent claim. Romero v. General Elec. Corp., 1986-NMCA-048, 104 N.M. 652, 725 P.2d 1220, cert. denied, 104 N.M. 632, 725 P.2d 832.

Rate calculated as of date when injury later prevented him from working. — Where a worker receives worker's compensation and then returns to work, if there is substantial evidence to show that he worked at full capacity after his return to work, it is proper to conclude that he did not know, or should not have known, of his disability until he was later unable to work. Because the compensable rate is calculated as of the date the workman (worker) knew or should have known of his disability, that rate should be calculated as of the later date when his injury prevented him from working. Romero v. General Elec. Corp., 1986-NMCA-048, 104 N.M. 652, 725 P.2d 1220, cert. denied, 104 N.M. 632, 725 P.2d 832.

No failure to pay compensation where there was no evidence that plaintiff's pain prevented him, in any manner whatsoever, from performing all of the duties of his job until January 15, 1970, just as he had prior to the accident; there was no suggestion in the evidence that the plaintiff did not earn the wages paid him after the accident, it followed that there was no failure or refusal to pay compensation prior to January 15, 1970, and the trial court's finding that the plaintiff knew at all times, or by the exercise of reasonable diligence should have known, that he suffered a compensable injury on July 27, 1966, was not supported by substantial evidence and, therefore, was erroneous. Gomez v. Hausman Corp., 1971-NMCA-173, 83 N.M. 400, 492 P.2d 1263, cert. denied, 83 N.M. 395, 492 P.2d 1258 (1972).

Workman (Worker) is not required to cease work and file his claim merely because he continues under the care of a doctor, or suffers some pain or had been told that at some future time an additional operation may be required as a result of the injury suffered, and on the contrary, it is clear that a workman (worker) may not recover for any period during which his earning ability is as much as before the injury; therefore, the trial court erred in applying the statute of limitations as a bar to recovery of compensation payments where workman (worker) returned to work after initial treatment and did not file a claim for additional treatment until he underwent surgery at a later date. Rayburn v. Boys Super Mkt., Inc., 1964-NMSC-201, 74 N.M. 712, 397 P.2d 953.

Claimant as employee though on sick leave lay-off status. — Where the plaintiff ceased actual work with his employer and went on sick leave lay-off 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, it was held that 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.

Continued payment of salary not payment of compensation. — Supreme court declines to hold that the continued payment of plaintiff's salary amounted to payment of compensation so as to suspend his right under the act to sue. Hathaway v. N.M. State Police, 1953-NMSC-108, 57 N.M. 747, 263 P.2d 690 (decided under former law).

III. STATUTE OF LIMITATIONS.

One-year limitation applicable in probate situation. — Workmen's (Workers') compensation one-year statute of limitations, not Probate Code's four-month limitation, applied to workmen's (workers') compensation action filed against employer, a sole proprietorship being run by personal representative after death of sole proprietor. Lucero v. Northrip Logging Co., 1984-NMCA-061, 101 N.M. 420, 683 P.2d 1342, cert. denied, 101 N.M. 419, 683 P.2d 1341.

No provision for extension of time limit for filing claim. — Section 37-1-17 NMSA 1978 prohibits Section 37-1-14 NMSA 1978 from applying in workmen's (workers') compensation and occupational disablement cases, since both the Workmen's (Workers') Compensation Act and the Occupational Disablement Law contain specific statutes of limitations in this section and Section 52-3-16 NMSA 1978, and neither act provides a saving clause allowing for an extension of the specified time limit for filing a claim. Ortega v. Shube, 1979-NMCA-130, 93 N.M. 584, 603 P.2d 323, overruled on other grounds by Bracken v. Yates Petroleum Corp., 1988-NMSC-072, 107 N.M. 463, 760 P.2d 155.

Section 37-1-10 NMSA 1978 inapplicable to workmen's (workers') compensation. — Section 37-1-10 NMSA 1978, which provides a one-year extension for minors and incapacitated persons on limitation periods on certain actions, does not apply to workmen's (workers') compensation actions. Howie v. Stevens, 1984-NMCA-052, 102 N.M. 300, 694 P.2d 1365, cert. quashed, 102 N.M. 293, 694 P.2d 1358.

Worker's knowledge of impairment for purposes of statute of limitations. — The fact that a worker is restricted to proving his claim by the testimony of a health care provider agreed upon by the parties or approved by the workers' compensation judge, and that the provider is directed to use American medical association publications in establishing the degree of disability, does not limit the running of the statute of limitations to only those situations when a health care provider has actually informed the worker that he has sustained a permanent impairment; thus, resolution of when a worker was deemed to have sustained impairment for purposes of running of the limitations period constituted a factual issue unsuitable for resolution by summary judgment. Montoya v. Kirk-Mayer, Inc., 1995-NMCA-104, 120 N.M. 550, 903 P.2d 861.

Limitation law effective on date of disability controls. — Where plaintiff was first injured on March 24, 1967, when the 1963 amendment was still in effect, and a year later returned to full employment for six years (having received workmen's (workers') compensation during the interim period), and on May 16, 1974, again suffered an alleged job accident and was totally disabled, it was held that the 1967 statute of limitation applied because the date of disability is critical and the law effective at that time controls; the 1974 claim for compensation did not relate back seven years to the date of the first accident since the whole philosophy upon which workmen's (workers') compensation is based, as the public policy of this state, militates against such a contention. De La Torre v. Kennecott Copper Corp., 1976-NMCA-108, 89 N.M. 683, 556 P.2d 839.

Limitation on remedy and right. — The limitation in the compensation statute for enforcing the right was a limitation not only on the remedy but on the right as well. Keilman v. Dar Tile Co., 1964-NMSC-138, 74 N.M. 305, 393 P.2d 332.

Statute is neither a tolling nor an equitable estoppel statute. — 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.

Method of computing time. — Where worker's death occurred on August 17, 2002; on June 28, 2003, employer told plaintiff that employer would take care of the worker's compensation claim; on October 1, 2003, plaintiff learned that employer had not filed a claim on plaintiff's behalf; plaintiff filed a pro se complaint for benefits on October 1, 2003; on October 27, 2003, employer filed a written accident report; on December 19, 2003, a mediator recommended that the complaint be dismissed without prejudice to permit plaintiff to obtain legal representation, with leave to file an amended complaint; plaintiff filed an amended complaint on June 18, 2004; the one-year limitation was tolled during the time plaintiff believed employer would take care of the worker's compensation claim from July 1 2003 to October 1, 2003 and during the pendency of the first complaint from October 1, 2003 to December 19, 2003; and pursuant to Section 52-1-59 NMSA 1978, plaintiff had thirty days after the employer filed a written accident report, or until November 26, 2003, to file a complaint, plaintiff's claim was barred by the one-year limitation period. Schultz v. Pojoaque Tribal Police Dep't, 2012-NMCA-015, 269 P.3d 14, cert. granted, 2012-NMCERT-001.

Method utilized in computing time. — Whether the case was timely filed under Rule 6(a), N.M.R. Civ. P. (now Rule 1-006A NMRA) or under Section 12-2-2 NMSA 1978 (now Section 12-2A-7 NMSA 1978) is irrelevant since these two provisions considered together make it amply clear that whether a limitation is considered procedural or substantive, whether it is a limitation on the right and remedy, or on only the remedy is immaterial so far as the method to be utilized in computing time is concerned. Keilman v. Dar Tile Co., 1964-NMSC-138, 74 N.M. 305, 393 P.2d 332.

Material issue of fact whether statutory limitation period had run. — Where plaintiff was injured almost three years before filing of claim but there was evidence that he did not attribute his back problems to the accident until sometime less than a year before filing his claim, there was a material issue of fact as to whether the statutory limitation period had run, and summary judgment on this issue was improper. Huerta v. New Jersey Zinc Co., 1973-NMCA-008, 84 N.M. 713, 507 P.2d 460, cert. denied, 84 N.M. 696, 507 P.2d 443.

Claims for amount greater than settlement offer. — Section 52-1-36 NMSA 1978 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 (decided under former law).

Section begins to run when compensable injury reasonably apparent. — As soon as it becomes reasonably apparent, or should become reasonably apparent to a workman (worker) that he has an injury on account of which he is entitled to compensation and the employer fails or refuses to make payment, he has a right to file a claim and the section begins to run from that date. There is nothing in the act as this court reads it which indicates that the running of the section may be delayed until a more serious disability is ascertainable. Cordova v. Union Baking Co., 1969-NMCA-037, 80 N.M. 241, 453 P.2d 761; Lent v. Employment Sec. Comm'n, 1982-NMCA-147, 99 N.M. 407, 658 P.2d 1134, cert. quashed, 99 N.M. 226, 656 P.2d 889 (1983).

Period of limitation does not commence to run until it becomes reasonably apparent, or should become reasonably apparent, to the workman (worker) that he has an injury for which he is entitled to compensation. Gomez v. Hausman Corp., 1971-NMCA-173, 83 N.M. 400, 492 P.2d 1263, cert. denied, 83 N.M. 395, 492 P.2d 1258 (1972).

Where the claimant was originally paid a few dollars' compensation for a relatively small injury and more than a year later developed serious trouble with his hand which had also been injured in the original accident, although apparently superficially, court sustained a recovery, holding that the section began to run from the time of the employer's failure to pay compensation for the latent injury, not from the time of the accident. Linton v. Mauer-Neuer Meat Packers, 1963-NMSC-013, 71 N.M. 305, 378 P.2d 126.

The statute of limitations begins to run in workmen's (workers') compensation cases as soon as it becomes reasonably apparent, or should become reasonably apparent, to a workman (worker) that he has an injury on account of which he is entitled to compensation, and his employer fails or refuses to make payment. Romero v. American Furniture Co., 1974-NMCA-097, 86 N.M. 661, 526 P.2d 803, cert. denied, 86 N.M. 657, 526 P.2d 799; ABF Freight Sys. v. Montano, 1982-NMSC-149, 99 N.M. 259, 657 P.2d 115.

In cases of latent injury, the time period for notice of claim does not begin to run until the claimant, as a reasonable man, should recognize the nature, seriousness and probable, compensable character of his latent injury. Smith v. Dowell Corp., 1984-NMSC-091, 102 N.M. 102, 692 P.2d 27.

In workmen's (workers') compensation case where trial court found as a fact that physician who treated plaintiff released him to return to his full duties soon after his accident and that it did not become and should not have become apparent to plaintiff that he had suffered a compensable injury under this act until four years later when physician told him that his workload should be lightened, statute of limitations did not begin to run until the time when plaintiff received such notice of compensable injury. Duran v. New Jersey Zinc Co., 1971-NMSC-083, 83 N.M. 38, 487 P.2d 1343.

Statute begins to run when worker knows or should know of disability. — The statute of limitations cannot begin to run until such time as the worker is entitled to benefits, and the worker knows or should know of the disability. Torres v. Plastech Corp., 1997-NMSC-053, 124 N.M. 197, 947 P.2d 154.

Where the workers' compensation judge did not determine a date of initial disability or scheduled injury, there was not substantial evidence to support a ruling that the worker's claim was barred by the statute of limitations. Torres v. Plastech Corp., 1997-NMSC-053, 124 N.M. 197, 947 P.2d 154.

When disability discovered rather than at accidental occurrence. — The period of limitation does not commence to run until it becomes reasonably apparent, or should become reasonably apparent, to the workman (worker) that he has an injury for which he is entitled to compensation; therefore, time does not begin to run until the disability is discovered rather than from the accidental occurrence. De La Torre v. Kennecott Copper Corp., 1976-NMCA-108, 89 N.M. 683, 556 P.2d 839; Casias v. Zia Co., 1979-NMCA-068, 93 N.M. 78, 596 P.2d 521, cert. denied, 93 N.M. 8, 595 P.2d 1203.

The statute of limitations does not commence to run until the wage earning ability of the injured workman (worker) has been decreased as a result of the accidental injury. Salazar v. Lavaland Heights Block Co., 1965-NMSC-049, 75 N.M. 211, 402 P.2d 948.

Includes any compensable disability which arises. — The wording of the limitation statute indicates that the period of limitation begins to run from the time of employer's failure to pay compensation when the disability can be ascertained and the duty to pay arises. This language does not mean the particular class of disability for which compensation is asked but any compensable disability which arises from an accident and eventually results in the class of disability for which claim is made. The section makes no distinction between loss of specific body members such as the right index finger and injuries to other parts of the body not specifically mentioned which result or may result in a form of disability, permanent or otherwise. Noland v. Young Drilling Co., 1968-NMCA-068, 79 N.M. 444, 444 P.2d 771.

Where a worker fell and broke her hip in the course of her employment, the statute of limitations period for all disability benefits arising out of the accident began to run on the day she returned to work on crutches. She was not entitled to file a claim for disability benefits several years later when, after she had abandoned her crutches, she developed aseptic necrosis and underwent hip replacement surgery. One suffering a temporary disability cannot wait until the disability becomes permanent before filing a claim. Whittenberg v. Graves Oil & Butane Co., 1991-NMCA-142, 113 N.M. 450, 827 P.2d 838, cert, denied, 113 N.M. 352, 826 P.2d 573 (1992), overruling Zengerle v. City of Socorro, 1986-NMCA-099, 105 N.M. 797, 737 P.2d 1174.

Time period after final installment for a reduced amount. — A claimant has one year from the date of receipt of a final reduced installment payment to file his claim for workers' compensation. Rodriguez v. X-Pert Well Serv., Inc., 1988-NMCA-046, 107 N.M. 428, 759 P.2d 1010, cert. denied, 107 N.M. 413, 759 P.2d 200.

Limitations period of two years and 31 (now 14) days. — The time periods of Section 52-1-30 NMSA 1978 and this section are to be added together to compute the maximum time period in which a compensation claim may be filed. Thus, the maximum period of time to file a worker's compensation claim is two years and 31 (now 14) days from the date of the occurrence of the disability. Cole v. J.A. Drake Well Serv., 1987-NMCA-132, 106 N.M. 484, 745 P.2d 392.

Burden upon claimant to prove filing within statutory period. — Where the filing of the claim for compensation in the office of the clerk of the district court, not later than the end of the statutory period after failure or refusal of the employer to pay the same, is limitation on the right of action, which is wholly statutory, and not a mere limitation upon the remedy, and is absolute and unconditional, the burden is upon the claimant to prove compliance therewith. Maestas v. American Metal Co., 1933-NMSC-026, 37 N.M. 203, 20 P.2d 924; Sanchez v. Bernalillo Cnty., 1953-NMSC-038, 57 N.M. 217, 257 P.2d 909 (decided under former law).

Section does not commence to run anew as to each remedial procedure. — It would be unreasonable and require legislation by interpretation to hold that the section commences to run anew as to each or any particular remedial procedure which is employed in an effort to effect a cure or relief from the results of an injury. Noland v. Young Drilling Co., 1968-NMCA-068, 79 N.M. 444, 444 P.2d 771.

Circumstances not suspicious so as to run limitation statute. — Where claimant under Workmen's (Workers') Compensation Act had allegedly told lawyer that insurer refused to pay, had allegedly been disabled from time of injury to trial, had continued to complain of back pain and had continued seeing his doctor and that claimant's insurer had paid part of doctor's bills and had offered claimant a settlement, circumstances were not "suspicious" so as to run one-year statute of limitations on filing of claim. Salazar v. Lavaland Heights Block Co., 1965-NMSC-049, 75 N.M. 211, 402 P.2d 948.

Failure to file within one year as bar. — Where the first proceeding for the recovery of 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 (10th Cir. 1956) (decided under former law).

Workman (worker) must file his claim for permanent total disability within one year and 31 (now 14) days of the notice that the insurer will pay him only for the loss of the specific member; he need not wait until the specified period has run and then seek a determination of excess disability, if any, by reason of the loss of the member. Gonzales v. Gackle Drilling Co., 1960-NMSC-059, 67 N.M. 130, 353 P.2d 353.

De minimis principle applicable. — Even though the worker failed to file temporary disability claims for five and one-half days of benefits within the period of limitations, under the de minimis principle, the employer's failure to pay benefits did not trigger the statute of limitations so as to bar the worker's subsequent claim for permanent disability. Fuentes v. Santa Fe Pub. Schs., 1995-NMCA-050, 119 N.M. 814, 896 P.2d 494.

Limitation does not apply to claim for medical expenses. — The one-year statute applies only after failure or refusal to pay installments of compensation - not when medical payments are not paid. Accordingly, the one-year limitation of this section does not apply to claims for the payment of medical expenses. Nasci v. Frank Paxton Lumber Co., 1961-NMSC-178, 69 N.M. 412, 367 P.2d 913.

The statute of limitations does not apply to medical expenses, and medical expenses may be claimed even though the right to claim installment payments of compensation may be barred. Zengerle v. City of Socorro, 1986-NMCA-099, 105 N.M. 797, 737 P.2d 1174, overruled on other grounds by Whittenberg v. Graves Oil & Butane Co., 1991-NMCA-142, 113 N.M. 450, 827 P.2d 838, cert. denied, 113 N.M. 352, 826 P.2d 573 (1992).

It is the nonpayment of periodic disability benefit installments, not the nonpayment of medical benefits, that controls the running of the statute in workers' compensation cases. Hutcherson v. Dawn Trucking Co., 1988-NMCA-051, 107 N.M. 358, 758 P.2d 308.

Application of statute of limitations to lump-sum credit. — Worker's compensation judge did not abuse her discretion in applying a credit for lump-sum payments previously made to claimant to a period of time during which employer had failed to pay benefits, even though the employer had initially stopped paying benefits more than one year prior to claimant's action. West v. Home Care Res., 1999-NMCA-037, 127 N.M. 78, 976 P.2d 1030.

Rights of dependents not saved from running of limitations. — There is no provision in the Workmen's (Workers') Compensation Act which saves the rights of dependents under disability from the running of limitations, although, as appears in this section, when dependents are shown to be entitled to benefits, the court has authority to appoint a person to receive the same for such dependents in such portions and amounts as it may determine to be for the best interests of them and of the public. The time within which such benefits must be claimed, however, is nowhere enlarged in favor of claimants under disability. Sanchez v. Bernalillo Cnty., 1953-NMSC-038, 57 N.M. 217, 257 P.2d 909 (decided under former law).

IV. TOLLING.

Employer-employee relationship necessary for application of Subsection A. — For the tolling provision in Subsection A to apply, there must have been an employer-employee relationship which continued after the accident; one need not be actually working and receiving compensation for the work to remain employed within the meaning of the statute. Segura v. Kaiser Steel Corp., 1984-NMCA-046, 102 N.M. 535, 697 P.2d 954, cert. quashed, 102 N.M. 412, 696 P.2d 1005 (1985).

Offer of settlement does 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.

Offers to settle do not toll the statute of limitations unless the offers are coupled by conduct that reasonably leads the workman (worker) to believe compensation will be paid. Knippel v. Northern Commc'ns, Inc., 1982-NMCA-009, 97 N.M. 401, 640 P.2d 507.

Negotiations do not bar running of statute. — 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. Northern Commc'ns, Inc., 1982-NMCA-009, 97 N.M. 401, 640 P.2d 507.

Statute of limitations was not tolled by employer's alleged fraud or misrepresentation in telling plaintiff's father that plaintiff was not covered by workmen's (workers') compensation. 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).

The sole tolling period permitted by this section for the filing of worker's compensation claims is a one-year period during which the worker remains employed by the employer regardless of whether the worker recovers from partial disability during that one-year period. Whittenberg v. Graves Oil & Butane Co., 1991-NMCA-142, 113 N.M. 450, 827 P.2d 838, cert. denied, 113 N.M. 352, 826 P.2d 573 (1992).

Insurance agent misinforming claimant 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 statute. Stasey v. Stasey, 1967-NMSC-005, 77 N.M. 436, 423 P.2d 869.

Where employer relieved of duty to compensate when worker returns to work. — If an employer is relieved of the duty to pay compensation during the period in which an injured worker returns to work, the employee's obligation to file a suit during such period is suspended and the statute of limitations is thereby tolled. Cordova v. City of Albuquerque, 1962-NMSC-148, 71 N.M. 491, 379 P.2d 781.

Law reviews. — For article, "Survey on New Mexico Law, 1982-83: Workmen's Compensation," see 14 N.M.L. Rev. 211 (1984).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 82 Am. Jur. 2d Workers' Compensation §§ 113, 487, 528, 530 to 551.

Limitation of time for filing claim under act is jurisdictional, 78 A.L.R. 1294.

When time period commences as to claim under workers' compensation or occupational diseases act for death of worker due to contraction of disease, 100 A.L.R.5th 567.

99 C.J.S. Workmen's Compensation § 280; 100 C.J.S. Workmen's Compensation §§ 436, 461, 468 to 482.