Saenz v. McCormick Construction Co. , 95 N.M. 609 ( 1981 )

OPINION

HERNANDEZ, Chief Judge.

Plaintiff appeals the summary judgment which was granted in favor of defendants. We reverse.

Plaintiff, a Texas resident, was injured on May 10, 1978, while working for McCormick Construction Company. At the time of the accident, plaintiff was working on a temporary job in New Mexico. The company was given notice of plaintiff’s injury, and plaintiff filed a notice of injury and claim for compensation with the Texas Industrial Accident Commission. The claim form requested that the Commission delay any further action until plaintiff asked it to proceed. No hearing was held and no award was made by the Commission. McCormick’s insurer, the Home Insurance Company, paid plaintiff weekly compensation benefits through January 16, 1979. Plaintiff filed suit in New Mexico on January 14, 1980, within one year after defendants’ voluntary payments had stopped.

The summary judgment was based upon § 52-1-65, N.M.S.A.1978, which provides that a claim must be filed within one year of the date of injury when the claimant has received benefits under the workmen’s compensation law of another state. The filing requirement of § 52-1-65, like the filing requirement of § 52-1-31, is subject to the tolling provision of § 52-1-36:

The failure of any person entitled to compensation under the Workmen’s Compensation Act * * * to * * * file any claim * * * within the time fixed by the Workmen’s 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.

Voluntary 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 Engineering Corp., 74 N.M. 45, 390 P.2d 283 (1964). The evidence shows that plaintiff notified the company of his injury and was paid weekly compensation benefits through January 16, 1979. The payments were voluntary; plaintiff’s notice and claim to the Texas Industrial Accident Commission requested that no further action be taken on his claim until he so requested. These payments were sufficient under § 52-1-36 and Reed, supra, to toll the filing requirements of § 52-1-65. Plaintiff’s suit under New Mexico law was filed on January 14, 1980, and so was within one year of the date that voluntary payments ceased.

The judgment of the district court is reversed and the case is remanded for trial on the merits.

IT IS SO ORDERED.

ANDREWS, J., concurs. LOPEZ, J., specially concurring.