December 06, 2011 – Cheryl Schultz on behalf of Kevin Schultz (deceased) v. Pojoaque Tribal Police Department, and New Mexico Mutual Casualty Company, No. 28,508

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: DECEMBER 6 2011

NO. 28,508

CHERYL SCHULTZ on behalf of
KEVIN SCHULTZ (deceased),

Worker-A ppellant,
V.

POJOAQUE TRIBAL POLICE
DEPARTMENT, and NEW MEXICO
MUTUAL CASUALTY COMPANY,

Employer/Insurer-A ppellees.

APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION
Helen L. Stirling, Workers’ Compensation J udge

Law Offices of George Wright Weeth
George Wright Weeth

Albuquerque, NM
for Appellant

Riley, Shane & Keller, P.A.
Richard J. Shane

KnstinJ. Dalton
Albuquerque, NM

for Appellees

OPINION
FRY, Judge.
{1} 	During a recreational church outing, Kevin Schultz (Worker) drowned while
rescuing a child who had fallen into the Rio Grande near Pilar, New Mexico. At the
time of his death, Worker was an off-duty police officer with the Pojoaque Tribal
Police Department (Employer). Approximately fourteen months after Worker’s death,
his widow, Cheryl Schultz, filed a workers’ compensation complaint for medical and
survivor benefits against Employer and its insurer. 	The Workers’ Compensation
Judge (WCJ) denied Mrs. Schultz’s claims, determining that the complaint was barred
by the statute of limitations and that even if the complaint had been timely filed,
Worker’s death did not arise out of his employment. We affirm that part of the WCJ’s
decision holding that Mrs. Schultz’s complaint was not timely filed and is therefore
barred by the statute of limitations pursuant to NMSA 1978, Section 52-1-31(B)
(1987), of the New Mexico Workers’ Compensation Act (the Act), NMSA 1978, §§
52-1-1 to -70 (1929, as amended through 2007). Given our disposition, we do not
address whether Worker’s death arose out of and in the course of his employment.

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BACKGROUND
{2} 	On August 17, 2002, Worker took the day off from his job as a police officer
in order to accompany his church youth group as a chaperone on a recreational outing
near Pilar, New Mexico. Worker drove his personal vehicle to the outing. During the
outing, one of the children fell into the Rio Grande, and Worker died while rescuing
the child. An autopsy determined that the cause of Worker’s death was drowning.
Worker’s death occurred off tribal land. Worker was not in uniform at the time of his
death, but his badge, department-issued pager, and department-issued revolver were
found in his possession. Worker was survived by his wife and a minor son.
{3} 	On October 1, 2003, nearly fourteen months after Worker’s death, Mrs. Schultz
filed a pro se workers’ compensation complaint for medical and survivor benefits on
behalf of her deceased husband against Employer and its insurer, New Mexico Mutual
Insurance Company. The complaint automatically entered into an internal mediation
process pursuant to requirements of the Workers’ Compensation Administration
(WCA). On December 19, 2003, the mediator issued a recommended resolution that
the complaint be “dismissed without prejudice” so that Mrs. Schultz could seek
attorney representation. The recommended resolution also gave Mrs. Schultz leave
to immediately file an amended complaint. Specifically, the recommended resolution
stated:

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[T]he Mediator asked the parties whether they were prepared to enter
into settlement negotiations. 	[Mrs. Schultz] stated that she would be
consulting an attorney prior to making any decisions about settlement.
The Mediator recognizes that [Mrs. Schultz] has the right to have an
attorney present at any stage in this case. It is the Mediator’s evaluation,
however, that under the circumstances of this case, [Mrs. Schultz’s]
attorney should be present during settlement negotiations for her
consultation. 	Therefore, the Mediator recommends that the complaint
. . . be dismissed without prejudice. [Mrs. Schultz] may immediately file
an amended complaint with the accompanying documents required by
this Administration.
(Emphasis added.) 	Neither party filed a notice of acceptance or rejection of the
recommended resolution, and the WCA generated a Notice of Completion on
February 13, 2004.
{4} 	On June 18, 2004, Mrs. Schultz, through her attorney, filed a second complaint
for compensation benefits on behalf of Worker. The clerk’s office at the WCA gave
the second complaint the same case number as the first complaint and, in addition to
the filing date, included a “reopened” stamped date of June 18, 2004. Although nearly
identical to the first complaint filed in October 2003, the second complaint included
the following additional request by Mrs. Schultz:
[Mrs. Schultz] requests modification of the Recommended Resolution
[dated] December 19, 2003[,] pursuant to [NMSA 1978,] Section 52-5-9
[1989,] for the reason that [Mrs. Schultz] has retained an attorney to
represent her, the attorney will be available to consult with [Mrs.
Schultz] during settlement negotiations, and it is no longer equitable that
the recommended resolution ha[ve] prospective application.

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{5} 	In 2007, after mediation proved unsuccessful, Mrs. Schultz’s second complaint
proceeded to a formal hearing before a WCJ. 	After a three-day hearing, the WCJ
denied Mrs. Schultz’s claims on two grounds. First, the WCJ determined that Mrs.
Schultz’s claims were barred because “[t]he statute of limitations ha[d] run without
reasonable excuse or [without] misleading conduct on the part of Employer or
Insurer.” Second, the WCJ found that even if Mrs. Schultz’s claims were not barred
by the statute of limitations, “Worker’s accident did not arise out of his employment
with Employer” because his accident “was not within the course and scope of his
employment, and was not caused by a risk incident to his employment.”
{6} 	This appeal followed. We initially dismissed the appeal due to a late filing of
the notice of appeal. The Supreme Court reversed and remanded for us to consider
the merits of this appeal. 	Schultz ex rel. Schultz v. Pojoaque Tribal Police Dep’t,
2010-NMSC-034, ¶ 25, 148 N.M. 692, 242 P.3d 259 (concluding that Mrs. Schultz’s
late filing of the appeal was excusable because it was due to an unanticipated mailing
delay outside of her control).
DISCUSSION
{7} 	Mrs. Schultz raises two issues on appeal, arguing that the WCJ erred in
determining that: (1) the statute of limitations barred her claims, and (2) Worker’s
death did not arise out of and in the course of his employment with Employer.

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Because we conclude that the statute of limitations issue is dispositive here, we do not
address whether Worker’s death arose out of his employment.
1. 	Statute of Limitations
{8} 	Under the Act, the applicable statute of limitations provides:
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 .
. . and unless the claim is filed within one year from the date of the
worker’s death.
Section 52-1-31(B) (emphasis added). 	In this case, Worker’s death occurred on
August 17, 2002. The parties stipulated in a pre-trial order that Employer had actual
notice of Worker’s death and, thus, according to Section 52-1-31(B) of the Act, a
claim for compensation benefits was required to be filed by August 17, 2003—which
was one year from the date of Worker’s death. 	Mrs. Schultz’s first and second
complaints were filed on October 1, 2003, and June 18, 2004, respectively. Although
Mrs. Schultz acknowledged that both filing dates fell outside the one-year limitations
period provided by Section 52-1-31(B), she argued at the formal hearing before the
WCJ that her claim was timely filed because the statute of limitations was tolled for

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an additional time period that ultimately covered the filing of both complaints. The
WCJ disagreed and entered a number of findings, concluding that there was no basis
for tolling the statute of limitations.
{9} 	On appeal, Mrs. Schultz argues that the WCJ’s determination was incorrect
because the statute of limitations was tolled by two circumstances: (1) Employer’s
conduct, which lulled Mrs. Schultz into a false sense of security and caused her to
believe workers’ compensation would be paid under Section 52-1-36 of the Act; and
(2) Employer’s failure to timely file an accident report under Sections 52-1-58 and -59
of the Act.
{10} 	In reviewing the WCJ’s factual findings, we apply whole record review.
DeWitt v. Rent-A-Center, Inc., 2009-NMSC-032, ¶ 12, 146 N.M. 453, 212 P.3d 341.
We view the evidence in the light most favorable to the decision, “but may not view
favorable evidence with total disregard to contravening evidence.” Id. (internal
quotation marks and citation omitted). To the extent that Mrs. Schultz’s arguments
regarding the statute of limitations challenge the WCJ’s factual findings, we must
determine whether substantial evidence supports the findings. 	Torres v. Plastech
Corp., 1997-NMSC-053, ¶ 8, 124 N.M. 197, 947 P.2d 154. “Substantial evidence is
such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” 	Id. (internal quotation marks and citation omitted). 	In addition, our

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review of the WCJ’s interpretation of statutory requirements concerning the statute
of limitations is subject to a de novo standard of review. See DeWitt, 2009-NMSC-
032, ¶ 14; see also Nelson v. Homier Distrib. Co., 2009-NMCA-125, ¶¶ 7, 11, 147
N.M. 318, 222 P.3d 690 (indicating that where facts relevant to a statute of limitations
issue are not in dispute, the issue becomes a question of law to which we apply de
novo review).
a. 	Accrual of the One-Year Limitations Period
{11} 	As a preliminary matter, we clarify when the one-year limitations period began
to accrue in this case. 	According to Section 52-1-31(B), a complaint for workers’
compensation benefits must be filed “within one year from the date of the worker’s
death.” Based on this statutory language, it is clear that the one-year time limit for
bringing a claim for benefits begins to accrue on the date of the worker’s death. At
oral argument before this Court, Mrs. Schultz’s counsel argued that the one-year
limitations period in this case began running, not from the date of Worker’s death, but
from the date that Mrs. Schultz filed her first complaint on October 1, 2003. Mrs.
Schultz’s counsel argued that the filing date was the same date that Mrs. Schultz
learned from the WCA ombudsman that Employer had not yet filed a claim on her
behalf, and that, given Employer’s conduct, the one-year limitations period began
accruing from the filing date. Her counsel cited Elsea v. Broome Furniture Co., 47

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N.M. 356, 143 P.2d 572 (1943), as authority for this contention. Alternatively, Mrs.
Schultz argued in her brief in chief that the one-year limitations period did not begin
to accrue until October 27, 2003, the date that Employer filed a written accident report
with the WCA.
{12} 	Neither of these arguments is persuasive. First, the language of Section 52-1-
31(B) is clear that the one-year limitation period begins accruing from the date of a
worker’s death. We see nothing in the language of that subsection indicating that the
running of the one-year limitations period may be delayed for the reasons given by
counsel.
{13} 	Second, Elsea is not controlling. 	Elsea did not involve death benefits and
instead concerned an injured worker filing a suit for benefits after the employer
refused to pay compensation. 47 N.M. at 361-62, 143 P.2d at 575-76. In Elsea, the
employer argued that the worker’s claim was not timely filed, while the worker
claimed that the employer’s conduct misled him into delaying the filing of his claim.
47 N.M. at 366-67, 143 P.2d at 578. Our Supreme Court affirmed the fact finder’s
finding supporting the worker’s view and further rejected the employer’s alternative
argument that, at minimum, a worker must file a claim within “a reasonable time after
[the employer’s] refusal” of the claim. 47 N.M. at 367-70, 143 P.2d at 578-80. We
see nothing in Elsea suggesting that the limitations period begins to run at a time other

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than the date of the worker’s death in a case involving an alleged work-related death.
Thus, the one-year limitations period in this case began accruing on August 17,
2002—the date of Worker’s death—and, absent any tolling, expired on August 17,
2003.
b. 	The Operation of Tolling
{14} 	Before we consider Mrs. Schultz’s specific arguments regarding the statute of
limitations, we address how tolling of the statute of limitations would play out under
the factual scenario presented in this case. 	Mrs. Schultz filed an initial untimely
complaint for compensation benefits that was dismissed without prejudice through
mediation and then, some months later, Mrs. Schultz filed a second complaint. Thus,
if we were to determine that the late filing of the initial complaint was excused by
Employer’s conduct or by Employer’s late filing of the accident report, we explain
how tolling of the initial complaint would occur in the context of a later dismissal
without prejudice and re-filing of a new complaint.
{15} 	Mrs. Schultz’s initial complaint, filed on October 1, 2003, proceeded to
mediation before a WCA mediator on December 19, 2003. 	This complaint was
dismissed without prejudice as a result of the mediator’s recommended resolution.
The recommended resolution made no reference to any statute of limitations issue, nor
did it address whether the initial October 1, 2003, filing date would be preserved by

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the filing of an amended complaint. Because neither party filed a notice of acceptance
or rejection of the recommended resolution, we assume that the recommended
resolution became binding on the parties by operation of law. See 11.4.4.10(D)(5)(a)
NMAC (6/13/03); see also NMSA 1978, § 52-5-5(C) (1993) (stating that any party
who fails to notify the director of the WCA of its acceptance or rejection of the
recommended resolution becomes conclusively bound by the resolution). 	At the
formal hearing, Mrs. Schultz’s written pleadings and closing argument did not address
what, if any, effect the dismissal without prejudice of the first complaint had on the
second complaint.
{16} 	In relevant part, the WCJ’s order concluded that: (1) “Mrs. Schultz’[s] original
[c]omplaint was dismissed without prejudice”; (2) “[]the Recommended Resolution[]
did not contain any language which preserved the original filing date for her”; and (3)
“[w]hen a [c]omplaint is dismissed without prejudice it is as if the [c]omplaint were
never filed; without saving language in the dismissal document, the statute of
limitations continues to run.”
{17} 	On appeal, Mrs. Schultz relies on Ortega v. Shube, an earlier case from this
Court, to assert that the WCJ’s conclusion was legally incorrect. 93 N.M. 584, 603
P.2d 323 (Ct. App. 1979), overruled on other grounds by Bracken v. Yates Petroleum
Corp., 107 N.M. 463, 760 P.2d 155 (1988). In Ortega, the plaintiffs brought an initial

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suit for workers’ compensation benefits within the one-year statute of limitations
period that was dismissed without prejudice for lack of jurisdiction. 93 N.M. at 585,
603 P.2d at 324. The plaintiffs later filed a second lawsuit, in which they relied on
NMSA 1978, Section 37-1-14 (1880), to claim that the second action was a
continuation of the previously dismissed lawsuit. 	Ortega, 93 N.M. at 585-86, 603
P.2d at 324-25; see § 37-1-14 (providing that commencement of a second suit within
six months after the original suit fails is “deemed a continuation of the first”). The
district court declined to apply Section 37-1-14 and dismissed the second action
because the statute of limitations had run prior to the filing of the second lawsuit.
Ortega, 93 N.M. at 585, 603 P.2d at 324. 	On appeal, this Court determined that
because the Workmen’s Compensation Act specifically limits the commencement of
an action to one year, Section 37-1-14 is inapplicable to workers’ compensation
lawsuits and cannot extend the one-year statutory time limit for filing a claim.
Ortega, 93 N.M. at 586-87, 603 P.2d at 325-26. Because the plaintiffs brought the
second lawsuit after the one-year time limit had elapsed, we determined that the
district court properly dismissed the lawsuit. Id. at 587, 603 P.2d at 326.
{18} 	Of relevance to this case is the dissent in Ortega because it contains the
approach that was later adopted by our Supreme Court, an approach that Mrs. Schultz
appears to argue is applicable here. 	The Ortega dissent reasoned that the second

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lawsuit should not have been dismissed on statute of limitations grounds because the
filing of the first action tolled the one-year limitations period during the pendency of
that action. Id. at 588, 603 P.2d at 327 (Sutin, J., dissenting). The dissent determined
that once the first action was dismissed without prejudice, the statute of limitations
began running once again and the second action was filed during the time remaining
in the limitations period, stating:
The first claims were filed within the statutory period [on July 20,
1976]. When these claims were filed, the statutory period of limitation
was tolled during their pendency since commencement of an action
arrests the running of the applicable statutory period. 	When [the]
plaintiffs’ claims were dismissed without prejudice on December 23,
1976, they were not dismissed because the district court was without
power to adjudicate the claims, but solely for the reason the claims were
improperly stated and were joined with other common law claims and
with one of products liability; that non-jury claims could not be joined
with jury claims. The statutory period was tolled from July 20, 1976[,]
to December 23, 1976, a period of five months thereafter. The claims
filed on January 13, [1977,] were not untimely.
Id.
{19} 	In Bracken, our Supreme Court looked favorably on the dissent in Ortega and
applied the dissent’s reasoning to that case. Bracken, 107 N.M. at 464, 466, 760 P.2d
at 156, 158. In Bracken, the worker’s widow filed a claim for workers’ compensation
approximately twenty-seven days prior to the expiration of the one-year period of
limitations. 107 N.M. at 463, 760 P.2d at 155. The district court dismissed the case
for lack of venue and, on appeal, the plaintiff argued that the district court should have

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transferred the case to a court with proper venue. 	Id. 	Our Supreme Court did not
address whether the case can be transferred from an improper venue and instead relied
on the reasoning in the dissent in Ortega. Bracken, 107 N.M. at 464, 760 P.2d at 156.
The Court determined that the statute of limitations was tolled by “the diligent filing
of the complaint” in the improper venue and that, following dismissal for improper
venue, the plaintiff could re-file the complaint in the proper venue. 	Id. at 466, 760
P.2d at 158. The Court instructed that “[u]pon entry of the final order on remand from
this appeal, the plaintiff shall have the remainder of the one-year statute of limitations,
twenty-seven days, more or less, in which to file her complaint in a proper venue.”
Id.
{20} 	We conclude that the reasoning in Bracken is applicable to this case. With the
foregoing in mind, we turn to address Mrs. Schultz’s arguments for tolling.
c. 	Section 52-1-36: Employer’s Conduct
{21} 	Mrs. Schultz’s primary argument for tolling of the statute of limitations in this
case is that her late filing was excused under Section 52-1-36 based on Employer’s
conduct that led her to believe that compensation would be paid. 	Section 52-1-36
provides that the failure of a person, entitled to compensation under the Act, to timely
file a claim shall not be a bar 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

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entitled to compensation to believe the compensation would be paid.” Section 52-1-
36. The WCJ determined that Section 52-1-36 was inapplicable to this case because
there was “[n]o conduct by Employer, in whole or in part, [that] led Mrs. Schultz to
believe that compensation would be paid.”
{22} 	The WCJ entered several findings of fact, which Mrs. Schultz does not appear
to challenge on appeal, concerning the course of conduct between Employer and Mrs.
Schultz regarding workers’ compensation benefits in connection with Worker’s death
prior to October 1, 2003—the filing date for the first complaint. The WCJ found that
in June 2003, approximately ten months after Worker’s death and still within the one-
year limitations period, Mrs. Schultz met with a financial advisor who first informed
her that she might be entitled to receive workers’ compensation benefits as a result of
Worker’s death. Prior to this meeting, Mrs. Schultz was unaware that she might be
eligible for workers’ compensation benefits, and Employer also had never raised the
possibility of benefits with Mrs. Schultz. Later, on July 28, 2003, Mrs. Schultz and
her financial advisor met with the Employer’s police chief to discuss the availability
of benefits. Mrs. Schultz testified that the police chief told her that “he would take
care of getting the workers’ compensation paperwork done.” The police chief testified
that the possibility of workers’ compensation benefits had never occurred to him
because Worker was off duty at the time of his death. The WCJ found that the police

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chief did not recall saying whether he would take care of filing the paperwork but that
when he was asked about Mrs. Schultz’s testimony, he responded by saying that “‘if
she said that, it must be correct.’”
{23} 	The WCJ found that, following the meeting, Mrs. Schultz did not speak to
Employer again regarding the paperwork, and she “evidently believed . . . that because
Employer had done the paperwork necessary for her to receive . . . federal benefits
[some months earlier], it would do so similarly for the workers’ compensation
benefits.” In late September 2003, Mrs. Schultz became concerned that she had not
yet received workers’ compensation benefits, and she contacted the WCA on October
1, 2003. She learned from an ombudsman that Employer had not filed a claim on her
behalf. 	She proceeded to file a pro se complaint on the same day, although the
complaint was outside the one-year limitations period.
{24} 	Mrs. Schultz argues that the WCJ misapplied Section 52-1-36 to the facts of this
case. She contends that the above facts indicate “that the course of conduct between
[her and Employer] lulled her into a false sense of security that her claim would be
paid” and caused her to delay in filing the complaint. As support, she cites to other
jurisdictions which she claims have held that a worker’s late filing is excused by an
“employer’s assurance that it would initiate a workers’ compensation claim on the
worker’s behalf.”

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{25} 	There is authority supporting Mrs. Schultz’s argument. 	Section 52-1-36
permits tolling when an employer’s conduct reasonably leads the worker to believe
that compensation will be paid. 	And Professor Larson’s treatise on workers’
compensation notes that
[t]he most common type of case [for excusing lateness on the basis of
employer fault] is that in which a claimant . . . contends that he or she
was lulled into a sense of security by statements of [the] employer[,] or
carrier representatives that the claimant “will be taken care of[,]” or that
the claim has been filed[,] or that a claim will not be necessary because
the worker would be paid compensation benefits in any event. 	When
such facts are established by the evidence, the lateness of the claim has
ordinarily been excused.
7 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law § 126.09[1]
(2011) (footnote omitted); see also id. § 126.09D[1] n.1 (for cases cited therein).
However, we need not decide whether Employer’s conduct tolled the statute of
limitations because, even if we assume without deciding that such tolling took place,
it would not extend to cover the second complaint Mrs. Schultz filed.
{26} 	On July 28, 2003, the date Mrs. Schultz first met with Employer to discuss the
possibility of workers’ compensation benefits, there were still approximately twenty-
one days left in the one-year limitations period, which was set to expire on August 17,
2003—one year from Worker’s death. If Employer’s representations at that meeting
tolled the one-year limitations period, the tolling would have occurred from July 28,
2003, to October 1, 2003—the duration of time during which Mrs. Schultz believed,

17
as a result of her meeting with Employer, that Employer would take care of the claim.
This time period was approximately two months long and represents the tolling
period. See Owens v. Eddie Lu’s Fine Apparel, 95 N.M. 176, 178, 619 P.2d 852, 854
(Ct. App. 1980) (stating that “during the time the [employer] reasonably led the
plaintiff to believe that compensation would be paid, the limitation period for filing
a claim was tolled”), abrogation on other grounds recognized Cole v. J.A. Drake Well
Serv., 106 N.M. 484, 745 P.2d 392 (Ct. App. 1987). Once Mrs. Schultz filed the first
complaint on October 1, 2003, the statute of limitations stopped running during the
pendency of that action because the commencement of an action arrests the running
of the applicable statutory time period. See Bracken, 107 N.M. at 466, 760 P.2d at
158; see also City of Rio Rancho v. Amrep Sw. Inc., 2011-NMSC-037, ¶ 45, 	N.M.
, 260 P.3d 414 (citing Bracken and other cases for the general proposition that the
filing of a complaint tolls the statute of limitations during the pendency of the action).
After the first complaint was dismissed without prejudice and a notice of case
completion was issued, Mrs. Schultz then had the remainder of the one-year statute
of limitations, twenty-one days, in which to file her second complaint. Because some
months elapsed before an attorney for Mrs. Schultz filed the second complaint, the
statute of limitations expired. Thus, even if there was tolling as a result of Employer’s
conduct, the second filing still fell outside the one-year limitations period.

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d. 	Sections 52-1-58, -59: Employer’s Late Filing of the Accident Report
{27} 	Mrs. Schultz next argues that the statute of limitations was tolled according to
Sections 52-1-58 and -59, due to Employer’s alleged late filing of the accident report.
It appears that Mrs. Schultz did not preserve this argument for appellate review. In
her opening and closing arguments during the formal hearing as well as in her
requested findings of fact and conclusions of law, Mrs. Schultz did not raise any
arguments based on Sections 52-1-58 and -59. 	Her only argument regarding the
statute of limitations at the hearing was that Employer’s conduct required tolling of
the one-year limitations period according to Section 52-1-36. Because Mrs. Schultz
did not make any arguments regarding Sections 52-1-58 and -59, the WCJ did not
make any specific findings or conclusions on this basis. See Rule 12-216(A) NMRA
(“To preserve a question for review it must appear that a ruling or decision by the
district court was fairly invoked[.]”). 	However, even if we were to ignore the
preservation issue, we conclude that Sections 52-1-58 and -59 do not provide a basis
for us to determine that Mrs. Schultz’s second complaint was timely filed.
{28} 	Section 52-1-58(A) requires an employer to file a written report of an accidental
injury suffered by an employee during the course of employment with the director of
the WCA within ten days of the injury or within ten days of notification to the

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employer of the injury. Section 52-1-59 addresses the consequences of an employer’s
late filing or failure to file the written accident report, as follows:
No claim for compensation under the Workers’ Compensation Act
. . . as it now provides or as it may hereafter be amended, shall be barred
prior to the filing of such report or within thirty days thereafter, but this
section does not shorten the time now provided for filing claims with the
director.
Based on our reading of Sections 52-1-58 and -59, a worker has one year from the
date of injury/death to file a claim for workers’ compensation unless the employer has
failed to file the written accident report. Once the initial one-year limitations period
has run, no claim for compensation will be barred as long as the claim is filed prior
to the accident report. See § 52-1-59 (“No claim for compensation . . . shall be barred
prior to the filing of such report[.]”). However, once the employer files the accident
report, the worker is given only thirty days from that date to file his/her claim for
compensation. See id. (“No claim for compensation . . . shall be barred prior to the
filing of such report or within thirty days thereafter, but this section does not shorten
the time now provided for filing claims[.]”). Our reading is consistent with prior cases
holding that Section 52-1-59 tolls the statute of limitations for untimely filed workers’
compensation claims where the employer has failed to file the written accident report.
See Nelson, 2009-NMCA-125, ¶¶ 8-15 (determining that a workers’ compensation
claim, although filed seven months past the one-year limitations period, was not

20
barred by the statute of limitations due to the employer’s failure to file an accident
report in New Mexico); see also Herman v. Miners’ Hosp., 111 N.M. 550, 556, 807
P.2d 734, 740 (1991) (stating that “Section 52-1-59 provides that the effect of a failure
to file is that no claim for compensation is barred prior to the filing of the appropriate
report” and then determining in that case that the late filing of a compensation claim
almost two years after the worker’s death was excused by the employer’s failure to
file the report).
{29} 	In this case, Mrs. Schultz filed her initial complaint on October 1, 2003, which
was nearly a month before Employer filed the written accident report on October 27,
2003. Consistent with Section 52-1-59, her initial complaint was timely because it
could not be barred until the accident report was filed. However, this does not solve
the timeliness problem that ensued when the initial complaint was dismissed without
prejudice. 	Once the dismissal occurred, Section 52-1-59 would no longer apply.
Section 52-1-59 would have allowed Mrs. Schultz an additional thirty days from the
date the accident report was filed within which to file her second complaint—to
November 26, 2003. 	But because that date had already passed before the second
complaint was filed, Mrs. Schultz was not entitled to any additional time upon
dismissal of her initial complaint. We are aware of no authority suggesting that Mrs.

21
Schultz would be entitled to a second thirty-day period under Section 52-1-59 upon
dismissal of her initial complaint.
e. 	Relation Back to the Original Filing Date of the First Complaint
{30} 	Mrs. Schultz makes a final argument for bringing the second complaint within
the one-year limitations period. She contends that the recommended resolution issued
by the mediator “intended to preserve [Mrs. Schultz]’s original filing [date of October
1, 2003,] and relate a subsequent complaint back to that date.” She further argues that
if this Court determines that the language of the mediation order is unclear and that
it in fact “failed to preserve her rights,” we should interpret the order to preserve her
original filing date in order to accomplish the mediator’s obvious intent.
{31} 	Mrs. Schultz did not make this argument before the WCJ. 	As a result,
Employer was not given the opportunity to respond to it, and the WCJ had no chance
to rule on the specific argument that Mrs. Schultz now makes. See Diversey Corp. v.
Chem-Source Corp., 1998-NMCA-112, ¶ 38, 125 N.M. 748, 965 P.2d 332 (explaining
that preservation serves the purposes of (1) allowing the trial court an opportunity to
correct any errors, thereby avoiding the need for appeal; and (2) creating a record from
which the appellate court can make informed decisions). However, even if we were
to set aside the preservation issue, we are not persuaded by this argument for two
reasons. First, Mrs. Schultz does not point to any language within the recommended

22
resolution that suggests the mediator’s intent was to preserve the original filing date.
Second, our Supreme Court in Bracken expressly held that the general savings statute,
Section 37-1-14, is not applicable in the workers’ compensation context. 	Bracken,
107 N.M. at 465, 760 P.2d at 157. That statute deems a new suit begun within six
months to be a continuation of a prior suit in which the plaintiff “fail[ed] therein for
any cause.” Section 37-1-14. The Court in Bracken stated that “Section 37-1-14 is
made inapplicable by Section 37-1-17 to any action or suit limited by separate
statute.” Bracken, 107 N.M. at 465, 760 P.2d at 157. Therefore, this relation-back
mechanism is unavailable to Mrs. Schultz, and she has not cited any other authority
supporting her argument.
{32} 	We recognize that Mrs. Schultz’s second complaint fails due to the technicality
of the mediator’s dismissal of her initial complaint without prejudice. 	We
acknowledge that the mediation process in workers’ compensation proceedings is not
infallible and that there may be instances, such as here, where a recommended
resolution drafted by a mediator can have unfortunate consequences for workers or
their surviving dependents. 	This is perhaps why our Legislature has created
mechanisms under the Workers’ Compensation Administration Act by which a worker
can reject, seek modification, or pursue a number of other actions with respect to
recommended resolutions and compensation orders. 	See § 52-5-5(C) (allowing a

23
party to accept or reject a recommended resolution within thirty days of receipt); see
also § 52-5-9 (discussing procedures for modifying compensation orders); Hidalgo
v. Ribble Contracting, 2008-NMSC-028, 144 N.M. 117, 184 P.3d 429 (addressing the
relationship between Sections 52-5-5 and -9). Unfortunately, in this case, counsel for
Mrs. Schultz did not argue that the recommended resolution, which dismissed her first
complaint, was issued in error or that it should have been modified on any of the
statutory grounds available to her. 	Mrs. Schultz also did not file a notice of
acceptance or rejection of the recommended resolution. And, although her counsel
included in the second complaint a request for modification of the recommended
resolution pursuant to Section 52-5-9, there is no indication that counsel followed up
on this request or that any argument was made at the formal hearing on the basis of
Section 52-5-9. 	We are unable to discern any basis for overcoming the technical
issues in this case in order to reach the merits.
CONCLUSION
{33} 	Based on the foregoing, we affirm the WCJ’s determination that Mrs. Schultz’s
claim was barred by the statute of limitations.
{34} 	IT IS SO ORDERED.
CYNTHIA A. FRY, Judge

I CONCUR:

CELIA FOY CASTILLO, Chief Judge

JONATHAN B. SUTIN, Judge (Specially concurring).

24.

25
SUTIN, Judge (specially concurring).
{35} 	I concur in the Majority Opinion (the Opinion), but do so with misgivings about
the WCA process.
{36} 	As to the one-year limitations period, the Opinion assumes a two-month tolling
from July 28, 2003, to October 1, 2003, Opinion ¶ 27, and then a stoppage based on
the filing of the October 1, 2003, complaint, lasting until the case closure on February
13, 2004, Opinion ¶¶ 3, 27, or perhaps a stoppage until thirty days after Employer
filed its accident report, Opinion ¶¶ 29-30. In any case, the Opinion affirms dismissal
of Mrs. Schultz’s case with prejudice because her second complaint, filed June 18,
2004, was outside even the most liberal view of the time deadline. I do not quarrel
with the Opinion’s time-deadline analysis. What moves me to specially concur is that
the analysis is dependent on the premise that the mediator’s recommended dismissal
without prejudice, followed by the case closure upon Mrs. Schultz’s failure to reject
the recommended resolution, was appropriate and required the filing of an amended
complaint within the one-year statute of limitations in Section 52-1-31(B). It is this
process that I address, after first discussing the time-deadline issues.
Two-Month Tolling
{37} 	Based on whole-record review, I agree with a July 28, 2003, to October 1, 2003,
two-month tolling period. Employer engaged in “such conduct as would ‘in whole

26
or in part’ reasonably lead [Mrs. Schultz] to believe compensation would be paid.”
Elsea, 47 N.M. at 366-67, 143 P.2d at 579; see § 52-1-36. Approximately two months
after Worker’s death, in October 2002, Employer filed with the Office of Justice
Programs, Bureau of Justice Assistance, United States Department of Justice, a Report
of Public Safety Officer’s Death, along with a Claim for Death Benefits by Mrs.
Schultz. 	In April 2003, a Department of Justice benefits specialist prepared and
signed a Public Safety Officers’ Benefits Act Claim Determination stating that Worker
was off duty at the time of his rescue effort, yet also stating that Worker “died as a
direct and proximate result of a personal injury sustained in the line of duty from
drowning while attempting to rescue another person.” 	This determination was
approved by the chief of the Department of Justice’s Benefits and Payments Division
and the Department’s Office of General Counsel concurred in the determination in
June 2003. A total benefit of $259,038 was awarded. The Office of Justice Programs
informed Mrs. Schultz by letter in June 2003 of the award.
{38} 	In June 2003, Mrs. Schultz met with a retired police officer who assisted Mrs.
Schultz as her financial counselor and together, in July 2003, they met with the
Employer’s Police Chief in regard to workers’ compensation. The Chief told Mrs.
Schultz 	and 	the 	counselor 	that 	he 	would 	take 	care 	of 	getting 	the 	workers’
compensation paperwork done. The Chief’s testimony that the possibility of workers’

27
compensation benefits had never occurred to him because Worker was off duty at the
time of his death is not credible given Employer’s earlier report and Mrs. Schultz’s
claim submitted to the Department of Justice and the Department’s determination that
the death resulted from “injury sustained in the line of duty” and given that Employer
was aware that Mrs. Schultz received compensation based on the documents submitted
to the Department.
{39} 	Also, on October 21, 2003, Employer wrote a letter to Mrs. Schultz stating,
“Your husband, Kevin Schultz, died in the line of duty. The Pueblo of Pojoaque will
do 	anything 	necessary 	for 	you 	to 	receive 	survivor’s 	benefits, 	workmen’s
compensation or any other benefits available to you and your grieving family.”
Employer prepared its First Report of Injury on October 16, 2003, and the report was
submitted to the WCA on October 27, 2003. One might reasonably infer from the
report and letter that Employer was sufficiently aware in July 2003 of the possibility
that Worker’s death was compensable.
The Remaining Time
{40} 	Based on the mediator’s recommended dismissal and the WCA case closure on
February 13, 2004, the Opinion allows Mrs. Schultz twenty-one days from that case
closure 	date 	within 	which 	to 	file 	the 	amended 	complaint 	mentioned 	in 	the
recommended resolution. This set a drop-dead date of March 5, 2004. If there had

28
been no dismissal by the mediator, there would have been no limitations issue save
that of whether Employer reasonably led Mrs. Schultz to believe that compensation
would in whole or in part be paid. Hence the significance of the question whether the
recommended dismissal and its effect were appropriate and effective to trigger a
requirement that Mrs. Schultz file an amended complaint within the limitations period,
which as the Opinion analyzes it with tolling and stoppage times, was twenty-one days
following the February 13, 2004, WCA case closure.
Failure to File Accident Report
{41} 	In regard to Employer’s failure to file an accident report, the Opinion assumes,
for the purpose of its analysis, that Employer had a duty to file an accident report
much earlier than Mrs. Schultz’s October 1, 2003, complaint. Op. ¶¶ 28-30. In my
view, Employer had a duty under Section 52-1-58(A) to file its First Report of
Accident within ten days of Worker’s death or within ten days after Employer
received notification of Worker’s death. An employer has a duty to timely file the
First Report of Accident and to send a copy of the report to the injured worker. 	Id.
The Employer’s First Report of Injury or Illness “must be filed within [ten] days of
knowledge of any alleged work-related injury or illness that results in more than
[seven] days of lost work.” NM WCA Form E1.2 (filing instructions) (available at
http://www.workerscomp.state.nm.us./pdf/e1.pdf). The report “must be filed even if

29
the employer disputes the worker’s claim of work-related injury or illness.” Id. “No
claim for compensation . . . shall be barred prior to the filing of such report or within
thirty days thereafter[.]” Section 52-1-59; see Anaya v. City of Santa Fe, 80 N.M. 54,
55, 56-57, 451 P.2d 303, 304, 305-06 (1969) (indicating that “barred” in what is now
Section 52-1-59, formerly 1953 Comp., § 59-10-28, refers to the statute of limitations
in workers’ compensation cases).
{42} 	Employer’s own standard operating procedures contemplated an off-duty
officer acting in an emergency situation to save a life. And as earlier indicated, based
on Employer’s report and Mrs. Schultz’s compensation claim submitted to the
Department of Justice, the Department determined that Worker died in the line of
duty. Employer acknowledged that Worker died in the line of duty in its letter to Mrs.
Schultz. And Employer implicitly acknowledged that it was required to file its First
Report of Accident when the Chief said he would take care of getting the workers’
compensation paperwork finished and, as well, when Employer ultimately filed its
report.
{43} 	No citation of authority is required for the knowledge in workers’ compensation
practice that, from time to time, employers contest a claim for compensation on the
ground that a worker was not acting within the scope of employment at the time of
injury. That defense to liability does not excuse an employer, such as Employer here,

30
from ignoring its duty to file the first report of accident within ten days of learning of
a worker’s death. 	Employer not only had actual notice of Worker’s death and the
circumstances surrounding the death, Employer was on notice that Worker’s action
might fall within the scope of Employer’s standard operating procedures and his
duties as an officer and that his injury might fall within the purview of a work-related
injury. Cf. Herman, 111 N.M. at 554, 556, 807 P.2d at 738, 740 (reversing the Court
of Appeals, which had determined there was no evidence in the record that the
defendant hospital “knew that the heart attack was caused by the decedent’s
employment” and holding that the evidence did support knowledge when the
defendant knew of the heart attack, knew of the decedent’s stressful schedule, and
knew that the decedent had had an argument with one of the surgeons the day of the
death (internal quotation marks omitted)). Thus, because Employer failed to file the
report required under Section 52-1-58(A) until October 27, 2003, pursuant to Section
52-1-59, Mrs. Schultz had until October 27, 2003, at the earliest to file her complaint
for compensation. Because she filed her original complaint with the WCA before that
date, on October 1, 2003, that complaint was not barred by the limitations period in
Section 52-1-31(B). See Herman, 111 N.M. at 556, 807 P.2d at 740 (holding a claim
was not time barred when the employer had actual notice of an injury but failed to file
the required report). 	A determination that Section 52-1-59 was inapplicable or

31
irrelevant because Mrs. Schultz did not file her second complaint until June 2004
brings to the fore that the mediator’s recommended dismissal was appropriate and
effective to trigger a requirement that Mrs. Schultz file an amended complaint by
November 26, 2003.
Mrs. Schultz’s Failures
{44} 	I note here that Mrs. Schultz’s original complaint was on the WCA’s Workers’
Compensation Complaint printed form. 	The mediator’s recommended resolution
stated that Mrs. Schultz could file an amended complaint. Mrs. Schultz’s June 18,
2004, complaint that was filed by her legal counsel was typewritten using the format
of the WCA’s complaint form. I am unaware whether there exists a WCA form for
or designating a complaint as an “amended complaint.” Mrs. Schultz’s June 18, 2004,
complaint requested modification of the recommended resolution on the ground that
Mrs. Schultz retained counsel who was available to consult with Mrs. Schultz during
settlement negotiations. Her June 18, 2004, complaint asserted that “it is no longer
equitable that the recommended resolution has prospective application.” Nothing in
the record or argument shows that the June 18, 2004, complaint was or was not
intended to be the amended complaint referred to in the recommended resolution.
Indeed, from the statements in the June 18, 2004, complaint, one could reasonably
infer that the complaint was intended as an amended complaint.

32
{45} 	Except as might be gleaned from what Mrs. Schultz stated in her June 18, 2004,
complaint, however, Mrs. Schultz did not specifically raise any issue or mount an
attack during the WCA proceedings as to the propriety of recommending a dismissal
and of a resulting case closure. 	Mrs. Schultz did not before the WCJ specifically
object to or otherwise attack or develop a record to question, that process or its effect.
Nor did she raise such an issue on appeal. These preservation failures cause me to
concur in the Opinion. But I must comment on the WCA process here.
{46} 	Workers’ compensation adjudications are part of a specialized statutory
administrative system and process separate from our court system. 	Ombudsmen,
mediators, 	and 	judges 	employed 	within 	the 	WCA 	are 	expected 	to 	be 	fully
knowledgeable in regard to the statutes and rules governing reporting requirements,
deadlines, and tolling provisions that may affect relief. Surely when it comes to a bar
to any relief based on a time deadline, a mediator should raise and discuss that
concern with someone in Mrs. Schultz’s position. The WCA is not to be a trap for an
unwary, pro se surviving spouse.
{47} 	It appears that on October 1, 2003, the date that Mrs. Schultz filed her original
complaint, an ombudsman informed her that there existed an issue with regard to the
statute of limitations and the complaint would be untimely. 	That warning was
obviously based on the fact that October 1, 2003, fell outside of the one-year period

33
following August 17, 2002, the date of Worker’s death. 	The advice from the
ombudsman is irrelevant here, however, because the Opinion assumes, and I agree,
that the one-year period was tolled for the two-month period discussed earlier based
on Employer’s conduct.
{48} 	Several circumstances strike me as particularly disconcerting with respect to the
WCA process. The mediation can result in a case closure and a bar to relief. Yet it
is not reported. 	There exists no record of what was discussed. 	Interestingly, the
mediator presumably did not think that Mrs. Schultz’s October 1, 2003, complaint was
untimely filed, given that he did not recommend dismissal based on the timeliness of
the complaint (which dismissal would have been a dismissal with prejudice). Instead,
the mediator recommended dismissal without prejudice because Mrs. Schultz did not
want to continue with the mediation until she obtained counsel. Nothing in the record
indicates whether the mediator ever explained or discussed with Mrs. Schultz why her
timely complaint had to be dismissed without prejudice instead of merely left in
pending status until she obtained counsel; in fact, nothing in the record indicates that
a dismissal procedure was required or proper. As well, nothing in the record indicates
that the mediator explained or discussed with Mrs. Schultz whether she was
confronted with a statute of limitations deadline within which to file the amended
complaint or else she would lose her right to relief, how the time deadline would be

34
established and play out, why she needed to “immediately” file an amended
complaint, or why, upon obtaining a lawyer, the mediation would not simply continue
under the timely filed original complaint. The mediator apparently did not refer Mrs.
Schultz to an ombudsman with respect to these matters. 	I find it difficult to
understand why at the close of the mediation Mrs. Schultz would, or should, have
reasonably understood that the mediator’s recommended resolution of dismissal would
follow the course taken by the WCA and the WCJ. I understand that Mrs. Schultz
appears to have taken too long to engage counsel and file another complaint, but delay
could have and likely should have been resolved differently than through a limitations
bar.
{49} 	To advise a pro se surviving spouse with respect to these matters would not, in
my view, violate the policy in the Act against favoring one party over the other as
proscribed in NMSA 1978, Section 52-5-1 (1990). Under the peculiar circumstances
here, where Mrs. Schultz did not want to continue to mediate without a lawyer
present, I have difficulty understanding why the workers’ compensation process could
not, for one example, have accommodated her by, instead of a dismissal without
prejudice and apparently without any explanation as to the effect of the dismissal,
setting a definitive date for the continuation of the mediation and indicating in writing

35
that Mrs. Schultz was required by then to have counsel present and that no further
continuation would be granted.
{50} 	Moreover, as I understand the process, a recommended resolution is to
recommend a resolution of a dispute between the parties. Section 52-5-5(C); NMSA
1978, § 52-5-7(A) (1993); 11.4.4.10(C)(6)(a), (d) NMAC. 	The reason for the
recommended dismissal, Mrs. Schultz’s desire to have a lawyer at the mediation, did
not resolve a dispute. No resolution was called for in terms of liability or amount of
compensation. The recommended resolution leaves no suggestion that Mrs. Schultz’s
original complaint no longer served to stop the running of the statute of limitations.
Indeed, upon the filing of Mrs. Schultz’s June 18, 2004, complaint, the WCA
“reopened” the case with the same case number. 	If time or delay in workers’
compensation cases is a significant concern, could the mediator’s recommended
resolution not have set a definitive deadline for the filing of the amended complaint
and could Mrs. Schultz not have been told of the dire consequences if it were not
timely filed? Further, given the anomalous, counterintuitive process employed here,
under the particular circumstances, would it not make sense to consider the June 18,
2004, complaint as relating back to the date of filing of the original complaint if it is
shown that Employer would not be prejudiced?

36
{51} 	Unfortunately, this Court is constrained by the failures of Mrs. Schultz to
develop and argue throughout the administrative proceedings what seem to me to be
critical facts, processes, and issues. 	Unfortunate, because but for the lack of
preservation, this case appears classifiable as the height of procedural anomaly. See
Bracken, 107 N.M. at 465, 760 P.2d at 157 (criticizing “procedural anomalies”).
{52} 	As I earlier indicated, based on its technical correctness, I am constrained to
concur in the Opinion. 	That constraint does not, however, prevent questioning
whether the workers’ compensation system and process should work in the fashion
seen here. And to deepen the concern, I think that Mrs. Schultz’s compensation claim
stated a claim deserving of a trial on the merits.
__________________________________
JONATHAN B. SUTIN, Judge