New Mexico: Late Filing of Death Benefits Claim May Be Excused Where Delay Was Due, In Part, to Actions of Employer

The Supreme Court of New Mexico recently held that a death benefits claim filed by the widow of an off-duty police officer, who drowned while rescuing a twelve-year-old boy from the Rio Grande, could proceed in spite of the fact that the claim was filed after the one-year period provided for in NMSA 1978, § 52–1–31(B) where it also appeared that the widow’s failure to file was based, at least in part, on representations by the employer’s officials that the necessary “paperwork” would be handled by the employer [Schultz v. Pojoaque Tribal Police Dep’t, 2013 N.M. LEXIS 113 (Apr. 11, 2013)].  

Following the officer’s death, members of the police department assured his widow that they would take care of everything for her. Within two months of the death, the employer filed the necessary paperwork for federal death benefits. However, it was not until a meeting a few weeks prior to the one-year anniversary of the officer’s death that it became clear that the widow might be entitled to workers’ compensation benefits. Later testimony indicated that during that meeting the chief of police told the officer’s widow that that he would “take care of getting the workers’ compensation paperwork done.” He did not do so, however.

The Supreme Court indicated that the Court of Appeals regarded NMSA 52- 1–36 (the statute of limitations) as a tolling statute–a mere interruption in the time a limitations period runs. The Court of Appeals reasoned that since the representation by the police chief had occurred 21 days prior to the running of the statute of limitations, the widow should have been allowed 21 days after she reasonably determined that the police chief had not, in fact, filed the necessary paperwork. As it turned out, said the Supreme Court, the widow didn’t need the 21 days; she filed a claim pro se on the very day she determined the chief had failed to move forward with the claim.

Some time later, the mediator recommended the petition be dismissed in order that the widow could obtain counsel. The claim was so dismissed and refiled three weeks later. A WCJ found that when the claim was dismissed without prejudice, it was as if the original had not been filed. The Court of Appeals agreed, indicating the filing of the second petition was, therefore, untimely.

The Supreme Court indicated the Court of Appeals’ reliance on such tolling analysis was not appropriate, that the clear language of § 52–1–36, that 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. The high court refused to fix any particular time within which the worker must file, as long as the failure to file is caused in whole or in part by the conduct of the employer or the insurer.