N.M. Stat. § 52-1-36 (2026)

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.