                                                       I attest to the accuracy and
                                                        integrity of this document
                                                          New Mexico Compilation
                                                        Commission, Santa Fe, NM
                                                       '00'04- 14:07:45 2013.05.16
         IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2013-NMSC-013

Filing Date: April 11, 2013

Docket No. 33, 372

CHERYL SCHULTZ for
KEVIN SCHULTZ (deceased),

       Worker-Petitioner,

v.

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

       Employer-Insurer-Respondents.

ORIGINAL PROCEEDING ON CERTIORARI
Helen L. Stirling, Workers’ Compensation Judge

Academy Compensation Clinic, P.C.
George Wright Weeth
Albuquerque, NM

for Petitioner

Riley, Shane & Keller, P.A.
Richard J. Shane
Tiffany L. Sanchez
Kristin J. Dalton
Albuquerque, NM

for Respondents

                                       OPINION

BOSSON, Justice.

{1}     On August 17, 2002, Pojoaque Tribal Police Officer Kevin Schultz drowned while
rescuing a twelve-year-old boy from the Rio Grande near Pilar, New Mexico. On the day
of the accident, Schultz had taken the day off from work to chaperone a group of children

                                           1
from his church on a recreational outing. This case arose when Schultz’s widow, Cheryl,
filed a claim for workers’ compensation benefits resulting from her husband’s death, but
only after the statute of limitations had expired.

{2}    Notwithstanding the late filing, Mrs. Schultz contends that the conduct of the
Pojoaque Tribal Police Department (police department or employer) caused her to file after
the deadline and, thus, we should consider her complaint timely filed pursuant to NMSA
1978, Section 52-1-36 (1937) (as amended through 1989) of the Workers’ Compensation Act
(the Act), entitled “Effect of failure of worker to file claim by reason of conduct of
employer.” This particular statute goes to the heart of Mrs. Schultz’s appeal.

{3}    Both the Workers’ Compensation Judge (WCJ) and the Court of Appeals decided that
Mrs. Schultz’s complaint was not timely filed. For the reasons that follow, we reverse and
remand to the Court of Appeals for further proceedings consistent with this opinion.

BACKGROUND

{4}     The Act provides a one-year statutory period within which to file a claim for
workers’ compensation benefits following the death of a worker. NMSA 1978, § 52-1-31(B)
(1987). When the filing delay is caused, “in whole or in part,” by the employer’s conduct,
then the delay “shall not deprive such person of the right to compensation” under the Act.
See § 52-1-36. The statute provides:

       The failure of any person entitled to compensation under the Workers’
       Compensation Act [Chapter 52, Article 1 NMSA 1978] 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.

Section 52-1-36 (emphasis added).

{5}     Following Schultz’s death, members of the police department assured Mrs. Schultz
that they would take care of everything for her. Within two months of Schultz’s death, the
employer filed the necessary paperwork for federal death benefits. However, it was not until
a meeting on July 28, 2003, between Mrs. Schultz, her financial advisor, and John Garcia,
Chief of the Pojoaque Tribal Police Department, that it became clear that Mrs. Schultz might
be entitled to workers’ compensation benefits. At this meeting, Chief Garcia told Mrs.
Schultz that he would “take care of getting the workers’ compensation paperwork done.”
To be clear, Chief Garcia testified that he did not remember telling Mrs. Schultz this, but
acknowledged that “if she said that, it must be correct.” Thus, we accept this representation
by the Chief of Police as unrebutted for purposes of this opinion.


                                             2
{6}     Despite this representation, the employer did not file a workers’ compensation claim
on Mrs. Schultz’s behalf. Once Mrs. Schultz realized that the employer was not going to file
her claim, she filed a pro se complaint that same day, October 1, 2003—some forty-five days
after the one-year statute of limitations had run. Although it was filed late, Mrs. Schultz’s
complaint proceeded to an informal mediation at the Workers’ Compensation Administration
(the WCA). See NMSA 1978, § 52-5-5(C) (1993) (describing that “every claim shall be
evaluated by the director [of the WCA] or his designee, who shall then contact all parties and
attempt to informally resolve the dispute”).

{7}      The mediator issued a recommended resolution on December 19, 2003,
recommending that the complaint be dismissed without prejudice so that Mrs. Schultz could
retain legal counsel to assist her during settlement negotiations. According to the mediator,
Mrs. Schultz could “immediately file an amended complaint with the accompanying
documents required by this Administration.” Neither party filed an acceptance nor a
rejection of this resolution. The WCA generated a Notice of Completion on February 13,
2004.

{8}     After retaining legal counsel, Mrs. Schultz filed a second complaint with the WCA
on June 18, 2004, which specifically requested modification of the first recommended
resolution because she had retained an attorney. A second mediation occurred, after which
the employer rejected the mediator’s recommended resolution of settlement with Mrs.
Schultz for a cash sum. After extensive discovery, the case proceeded to trial in 2007 before
a WCJ.

{9}     Following three days of trial, the WCJ entered findings of fact, conclusions of law,
and a compensation order. The WCJ decided that Mrs. Schultz was not entitled to workers’
compensation benefits on two grounds. The WCJ determined (1) that the statute of
limitations barred Mrs. Schultz’s claim, and (2) that even if the statute of limitations were
not a bar, her husband was not acting within the course and scope of his employment when
he died.

{10} Mrs. Schultz appealed. The Court of Appeals initially dismissed her appeal as
untimely. See Schultz v. Pojoaque Tribal Police Dep’t, No. 28,508, slip op. at 2 (N.M. Ct.
App. Sept. 23, 2008). We reversed and remanded for the Court of Appeals to decide the
merits of her appeal. Schultz ex rel. Schultz v. Pojoaque Tribal Police Dep’t, 2010-NMSC-
034, ¶ 1, 148 N.M. 692, 242 P.3d 259.

{11} On remand, the Court of Appeals affirmed the WCJ’s decision, holding that the
statute of limitations barred Mrs. Schultz’s claim. Schultz ex rel. Schultz v. Pojoaque Tribal
Police Dep’t, 2012-NMCA-015, ¶ 33, 269 P.3d 14. Finding this issue dispositive, the Court
of Appeals did not address whether her husband died within the course and scope of
employment. Id. ¶ 7. We granted certiorari, Schultz v. Pojoaque Tribal Police Dep’t, 2012-
NMCERT-001, 291 P.3d 599, to determine how Section 52-1-36 impacts a workers’
compensation claim once the statute of limitations has expired.

                                              3
STANDARD OF REVIEW

{12} This Court has previously held that “[i]n reviewing a WCJ’s interpretation of
statutory requirements, we apply a de novo standard of review.” DeWitt v. Rent-A-Center,
Inc., 2009-NMSC-032, ¶ 14, 146 N.M. 453, 212 P.3d 341.

DISCUSSION

Application of Statutory Tolling

{13} The Court of Appeals assumed without deciding that the employer’s conduct caused
Mrs. Schultz to file an untimely claim, thereby implicating Section 52-1-36. Schultz, 2012-
NMCA-015, ¶ 25. The Court then proceeded to analyze the effect of Section 52-1-36 on this
case, concluding that the statute was of no help to Mrs. Schultz. Schultz, 2012-NMCA-015,
¶ 26. For purposes of our own analysis, we track the issues as stated by the Court of
Appeals. We look first to the effect of Section 52-1-36 on this case, assuming it applies, and
then we will examine the record to see whether the failure to timely file “was caused in
whole or in part by the conduct of the employer.” Id.

{14} In examining the effect of Section 52-1-36, the Court of Appeals regarded it as a
tolling statute, relying on prior opinions of our two courts. See Schultz, 2012-NMCA-015,
¶¶ 25-26 (“Section 52-1-36 permits tolling when an employer’s conduct reasonably leads the
worker to believe that compensation will be paid.”). Whether Section 52-1-36 is, in fact, a
tolling statute is significant, because as the Court of Appeals described in Schultz, 2012-
NMCA-015, ¶¶ 25-26, tolling extends a statute of limitations for only a limited period of
time.

       Tolling [is] [a]n interruption in the time a limitations period runs. Tolling
       interrupts the time of a period for the limitations of action under a statute of
       limitations, effectively adding on time to commence an action after the
       moment when the statute would otherwise have barred an action. . . . Tolling
       persists as long as the cause of the tolling persists, and when that cause ends,
       the calculation of time under the statute commences again.

1 The Wolters Kluwer, Bouvier Law Dictionary 1645 (Desk Ed. 2012). This Court has
previously stated that “a statute of limitations may be tolled for a period of time, and then
recommence in such a way that the remainder of the period remaining under the statute is
extended by the period tolled.” State v. Sanchez, 109 N.M. 313, 316, 785 P.2d 224, 227
(1989); see also State v. Hill, 2008-NMCA-117, ¶ 9, 144 N.M. 775, 192 P.3d 770 (defining
a “tolling statute” as “a law that interrupts the running of a statute of limitations in certain
situations” (quoting Black’s Law Dictionary 1525 (8th ed. 2004) (internal quotation marks
and alteration omitted))).

{15}   An example may clarify the analysis. Assume that an employee is misled sixty days

                                               4
before the statute of limitations is to run. Tolling would suspend the effect of the limitations
statute until the employee learns or should learn the truth. If that were to occur one month
after the statute had run, the limitations period would be tolled until that time, and the
employee would have sixty days thereafter in which to file, the time left in the limitations
period when the misrepresentation occurred, but not a day longer.

{16} Because it interpreted Section 52-1-36 to function as a tolling statute, the Court of
Appeals applied a strict tolling analysis to Mrs. Schultz’s late filing. Schultz, 2012-NMCA-
015, ¶ 26. The Court focused on the fateful meeting with Chief Garcia on July 28, 2003,
twenty-one days before the statute of limitations was to expire. Id. The Court of Appeals
assumed without deciding that on this date, the employer’s conduct could reasonably have
led Mrs. Schultz to believe that her claim would be filed, thereby giving her a “false sense
of security.” Id. ¶¶ 25-26.

{17} It is this conduct that implicates Section 52-1-36. If the statute functions as a tolling
statute, then from July 28, 2003 onwards, Mrs. Schultz was operating under the assumption
that the employer was going to file her claim. On October 1, 2003, she realized that the
employer had not filed a claim. During this period, from July 28, 2003 until October 1,
2003, just over two months, the limitations period would be tolled. On October 1, 2003, the
cause of the tolling—the employer’s conduct reasonably leading Mrs. Schultz to believe that
the workers’ compensation claim would be filed—ceased to exist. At this point, under a
strict tolling analysis, the limitations statute began running again, giving her the originally
tolled twenty-one days to file the workers’ compensation claim on her own.

{18} Of course, in this case Mrs. Schultz did not need the full twenty-one days; she filed
her first workers’ compensation complaint the same day she realized the employer had not
filed, October 1, 2003. As a result, the statute of limitations stopped running when the
complaint was filed. See Bracken v. Yates Petroleum Corp., 107 N.M. 463, 466, 760 P.2d
155, 158 (1988) (describing how the statute of limitations is tolled during the pendency of
an action). Following the statutorily required mediation, the mediator recommended
dismissal without prejudice on December 19, 2003, stating in part:

       It is the [m]ediator’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 [m]ediator recommends that
       the complaint filed on October 22, 2003,1 be dismissed without prejudice.
       [Mrs. Schultz] may immediately file an amended complaint with the
       accompanying documents required by this Administration.


       1
          The record indicates that there was another complaint filed on October 22, 2003.
It is not clear why this second complaint was filed. This complaint is the same as the one
filed on October 1, 2003. For purposes of this appeal, all parties have treated October 1,
2003, as the date Mrs. Schultz first filed her workers’ compensation complaint.

                                               5
(Emphasis added.)

{19} The dismissal without prejudice complicated the analysis for both the WCJ and the
Court of Appeals. Because Mrs. Schultz did not file a rejection of the first recommended
resolution nor raise the effect of the dismissal without prejudice of the first complaint, the
WCJ found that “[w]hen a Complaint is filed and dismissed without prejudice, and the filing
date is not preserved in the document doing the dismissal, it’s as if the Complaint has never
been filed at all.” Schultz, 2012-NMCA-015, ¶¶ 15-16.

{20} According to the Court of Appeals, the statute of limitations started running again
once the mediator dismissed the case without prejudice, or at the latest, when the WCA
finally closed the file on February 13, 2004. Id. At that point, under the Court of Appeals’
view of tolling, Mrs. Schultz had no more than twenty-one days—the original tolling
period—to file another complaint with the WCA. Id. Her second complaint, filed on June
18, 2004, fell well outside this time frame. See id. ¶ 8. Thus, the Court of Appeals regarded
the second complaint as untimely, notwithstanding Section 52-1-36. Schultz, 2012-NMCA-
015, ¶ 26.

Estoppel

{21} Mrs. Schultz asks us to construe Section 52-1-36, not as a strict tolling statute, but
as an estoppel statute. Equitable estoppel “applies where, as a result of the conduct of a
party upon which another person has in good faith relied to his or her detriment, the acting
party is absolutely precluded, both at law and in equity, from asserting rights that might have
otherwise existed.” 28 Am. Jur. 2d Estoppel and Waiver § 27 (2011).

{22} Mrs. Schultz argues that Molinar v. City of Carlsbad, 105 N.M. 628, 735 P.2d 1134
(1987), supports her position that Section 52-1-36 “is actually a codification of the principle
of equitable estoppel.” In Molinar, which concerns retirement benefits rather than workers’
compensation, we determined that a city was estopped from raising the statute of limitations
as a defense when the actions of its former attorney assured city employees that their case
would be settled satisfactorily without the need for litigation. Id. at 631, 735 P.2d at 1137.
We cited Section 52-1-36 as an example of a statute which codifies that “the conduct of a
party may estop it from raising the statute of limitations as a defense.” Molinar, 105 N.M.
at 631, 735 P.2d at 1137.

{23} Unlike tolling, equitable estoppel does not appear to confine its relief to a carefully
crafted number of days. It is more a matter of what is fair under the circumstances, which
is why Mrs. Schultz prefers that doctrine in this case. See Anderson v. Cox, 977 F. Supp.
413, 416 (W.D. Va. 1997) (“The concept of equitable estoppel is based on principles of
fairness.”); see also 28 Am. Jur. 2d, supra § 31 (“[T]he doctrine of equitable estoppel may
. . . be invoked to prevent a defendant from relying on the statute of limitations.”). However,
we do not see the dicta in Molinar as deciding the question one way or another. Clearly, that
case did not determine whether Section 52-1-36 is a tolling statute or one based on equitable

                                              6
estoppel; the statute was cited only as an illustration. For the following reasons, based on
its history and evolution, we conclude that Section 52-1-36 established its own special relief,
untethered to either doctrine.

Section 52-1-36

{24} Section 52-1-36 has a long history in our jurisprudence. Our Legislature first enacted
the statute’s predecessor in 1937 in response to a 1931 decision of this Court, Taylor v.
American Employers’ Insurance Co. of Boston, Massachusetts. 35 N.M. 544, 3 P.2d 76
(1931), superseded by statute as stated in Lucero v. White Auto Stores, Inc., 60 N.M. 266,
268, 291 P.2d 308, 309 (1955) (recognizing that the Legislature enacted this statute
following the Taylor decision); see also 1937 N.M. Laws, ch. 92, § 13.

{25} In Taylor, this Court took a strict view of the statute of limitations within the Act as
it existed at the time. See 35 N.M. at 550, 3 P.2d at 78. In that case, an injured worker
asserted that the employer’s insurer led him to believe that workers’ compensation would
be paid. Id. at 545, 3 P.2d at 76. The worker relied on these representations and failed to
file a workers’ compensation complaint within the applicable limitations period. Id. This
Court strictly applied the statute of limitations, finding that waiver and estoppel could not
save the worker’s claim, because the statute at issue was not a mere limitation on the
remedy, but was a “limitation upon the right of action” that is “conditioned upon its
enforcement within a prescribed period.” Id. at 549-50, 3 P.2d at 78 (internal quotation
marks and citation omitted); see also Lucero, 60 N.M. at 268, 291 P.2d at 309 (describing
the holding of Taylor).

{26} Six years later, in response to our holding in Taylor, the Legislature enacted what is
codified today as Section 52-1-36. See Knippel v. N. Commc’ns, Inc., 97 N.M. 401, 405, 640
P.2d 507, 511 (Ct. App. 1982) (noting that “[p]rior to the enactment of [Section] 52-1-36,
early decisions in New Mexico declined to recognize assertions of equitable estoppel or
waiver as a basis for tolling the time constraints imposed by [Section] 52-1-31,” and citing
Taylor). Except for several very minor amendments, the language enacted in 1937 remains
in force today. Compare 1937 N.M. Laws, ch. 92, § 13 (enacting what is now Section 52-1-
36), with § 52-1-36 (containing substantively identical language).

{27} Over the years, courts have described Section 52-1-36 as a tolling statute. See Silva
v. Sandia Corp., 246 F.2d 758, 760 (10th Cir. 1957) (considering employee’s argument that
employer’s conduct tolled the statute of limitations under previous codification of Section
52-1-36); Stasey v. Stasey, 77 N.M. 436, 439-40, 423 P.2d 869, 871-72 (1967) (recognizing
that “[t]his section of our statutes provides the only reason or excuse for tolling or extending
the time within which suit must be filed” under the Act); Lucero, 60 N.M. at 269, 291 P.2d
at 310 (determining whether what is now codified as Section 52-1-36 tolled the one-year
limitations period in which to file a workers’ compensation complaint); Hutcherson v. Dawn
Trucking Co., 107 N.M. 358, 360, 758 P.2d 308, 310 (Ct. App. 1988) (recognizing that
Section 52-1-36 functions as a tolling statute); Howie v. Stevens, 102 N.M. 300, 305, 694

                                               7
P.2d 1365, 1370 (Ct. App. 1984) (citing Section 52-1-36 and stating that
“[m]isrepresentation that the employee will receive benefits remains the only reason the
workmen’s compensation limitation period is tolled”); Ryan v. Bruenger M. Trucking, 100
N.M. 15, 17, 665 P.2d 277, 279 (Ct. App. 1983) (describing Section 52-1-36 as containing
a tolling provision); Saenz v. McCormick Constr. Co., 95 N.M. 609, 610, 624 P.2d 551, 552
(Ct. App. 1981) (describing Section 52-1-36 as a “tolling provision”), holding modified on
other grounds by Ryan, 100 N.M. at 17, 665 P.2d at 279; Owens v. Eddie Lu’s Fine Apparel,
95 N.M. 176, 178, 619 P.2d 852, 854 (Ct. App. 1980) (stating that “52-1-36 . . . is a tolling
provision”), abrogation recognized on other grounds in Schultz, 2012-NMCA-015, ¶ 26.

{28} Although our courts have used the term “tolling” to describe Section 52-1-36, this
Court’s seminal opinion interpreted Section 52-1-36 differently—without the limitations of
tolling. In 1943, in Elsea v. Broome Furniture Co., this Court construed NMSA 1941,
Section 57-914, the exact language that was codified in 1937. 47 N.M. 356, 366-67, 143
P.2d 572, 578 (1943); compare NMSA 1941, § 57-914, with 1937 N.M. Laws, ch. 92, § 13
(containing identical language).

{29} In that case, a worker was injured on three separate occasions, from February to June
1940. Id. at 362-63, 143 P.2d at 575-76. Following his third injury, the worker attempted
to obtain workers’ compensation benefits in August of 1940. Id. at 363, 143 P.2d at 576.
After speaking with an insurance adjuster, the worker learned that he had a “legitimate
claim” for workers’ compensation and “it was only a matter of time until it would be paid.”
Id. at 364, 143 P.2d at 576. In the intervening months, the worker contacted the insurance
company to inquire about his claim and at no time was he told that his claim would not be
paid. Id. at 364, 143 P.2d at 576. However, on October 27, 1941, the insurance company
formally rejected the worker’s claim. Id. at 364, 143 P.2d at 576-77. Seven months later,
almost two years after his initial efforts at collection, the worker filed suit. Id. at 364, 143
P.2d at 577.

{30} The worker argued under the precursor to Section 52-1-36 that his failure to file a
timely lawsuit “was caused in whole or in part by the conduct of the employer or insurer
which would reasonably lead the person entitled to compensation to believe the
compensation would be paid.” Elsea, 47 N.M. at 366-67, 143 P.2d at 578 (internal quotation
marks, alteration and citation omitted). The Elsea court refused to disturb the jury verdict
in the worker’s favor, which found that the worker had been “misled ‘in whole or in part’
by the conduct of the employer or insurer.” Id. at 368, 143 P.2d at 579. In reaching this
conclusion, the Elsea court reasoned that “[t]he statute provides that it is only necessary to
connect claimant’s delay ‘in whole or in part’ with the conduct of the employer to excuse
a failure to file claim or a suit within the time prescribed.” Id. (emphasis added). This Court
further stated, “The statute does not go so far as to require actual waiver by agreement or
conduct which would meet the technical rules supporting estoppel. It only requires proof
of such conduct as would ‘in whole or in part’ reasonably lead claimant to believe
compensation would be paid.” Id. at 368-69, 143 P.2d at 579.


                                               8
{31} Aside from avoiding “technical rules” in assessing the impact of employer’s conduct
upon the employee, the Elsea court also declined to impose a rigid time limit within which
the employee must file suit. In holding that the worker’s suit was timely filed, the Elsea
court was “not disposed to fix any particular time short of one year after [denial of the claim]
within which the action must have been filed.” Id. at 369, 143 P.2d at 580.

{32} In Elsea, this Court noted that various authorities had different approaches to
determining how much time was appropriate for the worker to re-file a claim once the
insurance company denied it. Id. at 369-70, 143 P.2d at 580. Specifically, the Elsea court
noted that “the extended period under such circumstances should be only a reasonable time
rather than a whole new statutory period.” Id. at 370, 143 P.2d at 580 (internal quotation
marks and citation omitted). Elaborating on what a reasonable time could mean, the Elsea
court stated that “the adoption a reasonable time [approach] . . . does not mean that the
statutory period of limitations might not itself be treated as a reasonable time,” and in
contrast, that “[m]any cases hold that the time to be allowed is to be defined as a ‘reasonable
time’, [sic] but which should not exceed that of the original limitation period.” Id. The
Elsea court did not decide which approach—an entirely new statutory period or only a
reasonable amount of time not exceeding the original limitations period—was the better way
to proceed. Id.

{33} In the present appeal, our Court of Appeals addressed Elsea only in the context of
when the one-year limitations began to run. Schultz, 2012-NMCA-015, ¶¶ 11-12.
Apparently Mrs. Schultz argued to the Court of Appeals that Elsea supported her contention
that the statute of limitations began to run on October 1, 2003, the day she filed her
complaint, not the day Schultz died. Schultz, 2012-NMCA-015, ¶ 11. The Court of Appeals
correctly stated that it saw “nothing in Elsea suggesting that the limitations period begins
to run at a time other than the date of the worker’s death in a case involving an alleged work-
related death.” Schultz, 2012-NMCA-015, ¶ 13. Mrs. Schultz does not make that argument
to this Court, but asserts instead that the Court of Appeals misunderstood her Elsea
argument. Regardless, we view the holding in Elsea more broadly than did our Court of
Appeals, and it informs our interpretation of Section 52-1-36.

{34} We find the plain language of Section 52-1-36 to be clear. Elsea, though admittedly
somewhat cryptic, supports a charitable, non-parsimonious reading of that statute in favor
of deciding a worker’s claim on its merits. We observe that Section 52-1-36 has changed
very little over time, despite the Act’s major evolution in other ways. Compare NMSA
1978, § 52-1-47 (1990) (amended nine times), with § 52-1-36 (amended three times).
Whatever the Legislature meant in drafting what is now Section 52-1-36, Elsea’s
interpretation of it has been good law for close to seventy years, and in that time, the
Legislature has never modified the statute to mandate a stricter approach to calculating the
limitations period. Nothing in Section 52-1-36 of the Act specifies that strict tolling is the
only way to apply this section to an untimely workers’ compensation complaint. In fact,
Section 52-1-36 never uses the word “tolling.”


                                               9
{35} Significantly, when the Legislature wanted to make clear elsewhere in the Act that
tolling was the appropriate remedy, it stated so in express language. For example, NMSA
1978, Section 52-1-31(A) (1987), provides that the worker has a duty to file a claim within
one year for any workers’ compensation payment or installment that an employer or insurer
fails or refuses to pay. Section 52-1-31(A), however, allows the statutory period to be tolled
if the worker remains employed where the injury occurred. Id. (“[The] 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.” (emphasis added)).

{36} We have previously said that “when the Legislature includes a particular word in one
portion of a statute and omits it from another portion of that statute, such omission is
presumed to be intentional.” State v. Jade G., 2007-NMSC-010, ¶ 28, 141 N.M. 284, 154
P.3d 659. Without necessarily applying that principle of statutory construction to this
specific instance, its reasoning cautions circumspection; it affords us additional guidance as
we consider whether Section 52-1-36 should be confined by the limits of tolling or by any
other “technical rule.” See Elsea, 47 N.M. at 368-69, 143 P.2d at 579.

{37} Admittedly, our prior case law has leaned in a different direction, guiding the Court
of Appeals in this case to apply Section 52-1-36 as a tolling statute. But the fact that prior
opinions have somehow overlooked or misconstrued Elsea’s meaning does not mean that
we should compound the error. Therefore, we hold that Section 52-1-36 should no longer
be confined by the limits of tolling.2

{38} Accordingly, consistent with Elsea and the language of Section 52-1-36, 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. As we stated in Elsea, we are not disposed 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. See Elsea, 47 N.M. at 369,


       2
         We expressly overrule the portions of those cases which describe or apply Section
52-1-36 as a tolling statute. See Stasey v. Stasey, 77 N.M. 436, 423 P.2d 869 (1967); Lucero
v. White Auto Stores, Inc., 60 N.M. 266, 268, 291 P.2d 308, 309 (1955); Hutcherson v. Dawn
Trucking Co., 107 N.M. 358, 360, 758 P.2d 308, 310 (Ct. App. 1988); Howie v. Stevens, 102
N.M. 300, 305, 694 P.2d 1365, 1370 (Ct. App. 1984); Ryan v. Bruenger M. Trucking, 100
N.M. 15, 17, 665 P.2d 277, 279 (Ct. App. 1983); Knippel v. N. Commc’ns, Inc., 97 N.M.
401, 405, 640 P.2d 507, 511 (Ct. App. 1982); Saenz v. McCormick Constr. Co., 95 N.M.
609, 610, 624 P.2d 551, 552 (Ct. App. 1981), holding modified on other grounds by Ryan,
100 N.M. at 17, 665 P.2d at 279; Owens v. Eddie Lu’s Fine Apparel, 95 N.M. 176, 178, 619
P.2d 852, 854 (Ct. App. 1980), abrogation recognized on other grounds in Schultz, 2012-
NMCA-015, ¶ 26.

                                             10
143 P.2d at 570 (refusing to set a rigid deadline for filing a complaint).

{39} Having settled on the proper application of Section 52-1-36, we now determine (1)
whether the conduct on the part of this particular employer, in whole or in part, reasonably
led Mrs. Schultz to believe that workers’ compensation benefits would be paid, and if so, (2)
whether Mrs. Schultz’s workers’ compensation complaint was filed within a reasonable time
thereafter.

The Employer’s Conduct Reasonably Led Mrs. Schultz to Believe Workers’
Compensation Claim Would be Filed and Benefits Would be Paid

{40} The Court of Appeals assumed without deciding that the conduct of the employer
following the July 28, 2003, meeting with the Chief of Police reasonably led Mrs. Schultz
to believe compensation would be paid. See Schultz, 2012-NMCA-015, ¶ 26. In order to
demonstrate that the conduct on the part of the employer caused a failure to file a workers’
compensation complaint, the worker must show, by reasonable inference, that he believed
compensation would be paid, the belief was reasonable, and the belief was based, in whole
or in part, on the conduct of the employer. See Hutcherson, 107 N.M. at 360, 758 P.2d at
310 (listing elements in the context of summary judgment).

{41} From the night Schultz died, his employer assured his widow that it would “take care
of everything for her.” At this early stage, the employer did not state specifically that it
would file a workers’ compensation claim, and perhaps, as the employer stated, no one was
contemplating workers’ compensation benefits at that early point in time.

{42} Two months after Schultz’s death, the employer submitted the paperwork necessary
to make Mrs. Schultz eligible for federal death benefits, which she did in fact receive. On
July 17, 2003, Mrs. Schultz was notified of her benefits under the federal Public Safety
Officers’ Death Benefits statute, 42 U.S.C. § 3796 (2006), which, as the award letter
indicated, recognizes “the selfless dedication of federal, state and local public safety officers
killed in the line of duty.”

{43} These events provide context for the July 28, 2003, meeting with Chief Garcia. At
this meeting, all participants became aware that Mrs. Schultz might be entitled to workers’
compensation benefits. The Chief testified about his surprise at hearing this, because it had
never occurred to him that Mrs. Schultz might be entitled to workers’ compensation.
Nevertheless, Chief Garcia promised to prepare the necessary paperwork for filing a
worker’s compensation claim.

{44} Both Mrs. Schultz and her financial advisor testified, without contradiction, that they
left this meeting believing that the employer would be filing the necessary papers. Shortly
after this meeting, Mrs. Schultz visited Chief Garcia to inquire about the status of her
worker’s compensation complaint, and he told her to be patient because “these things take
time.” Consistent with this conduct, the employer wrote a letter to Mrs. Schultz on October

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21, 2003, stating that “[y]our 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.”

{45} These representations, fully documented in the record below, support Mrs. Schultz’s
belief that her husband’s compensation would be paid, or at the very least, that she could rely
on the employer to process her claim and file the necessary paperwork toward that same end.
We recognize that Section 52-1-36 speaks in terms of causing the employee to believe that
benefits would be paid. Under the circumstances of this case, we conclude the employer’s
promises were the functional equivalent of saying that it would do everything within its
power to see that benefits were paid. Mrs. Schultz could reasonably rely on those
representations within the meaning of Section 52-1-36.

{46} The employer’s conduct, therefore, implicates the relief called for in Section 52-1-36,
and allowed Mrs. Schultz a reasonable period of time within which to file on her own. We
now turn to the reasonableness of Mrs. Schultz’s conduct.

Mrs. Schultz Acted Within a Reasonable Period of Time and Her Filing Was Timely

{47} Mrs. Schultz filed her pro se workers’ compensation complaint on October 1, 2003.
The statute of limitations on her claim expired on August 17, 2003. Although both the Court
of Appeals and the WCJ focused on the prejudicial effect of the first mediator’s dismissal
without prejudice, that focus was misplaced. Mrs. Schultz’s first complaint, filed on October
1, 2003, was clearly within a reasonable time after the statute of limitations expired—even
under the now-discredited tolling approach. The WCA treated this complaint as timely and
proceeded to mediation.

{48} The WCA mediator’s first recommended resolution made no mention of the statute
of limitations. In fact, it appears that the dismissal without prejudice of the first
recommended resolution was intended to assist Mrs. Schultz; it was intended to provide her
time to consult with an attorney before entering settlement negotiations. See Schultz, 2012-
NMCA-015, ¶ 48 (Sutin, J., specially concurring) (“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.)”).

{49} Additionally, when Mrs. Schultz filed her second worker’s compensation complaint
on June 18, 2004, the WCA gave the complaint the same case number as the October 1,
2003, complaint and labeled it with a ‘Reopened’ date stamp. When a second mediator
considered the issue of the statute of limitations later in 2004, he specifically stated that “[i]t
is the [m]ediator’s evaluation that if this case proceeds to trial, a Workers’ Compensation
Judge will probably decide this complaint is not barred by the statute of limitations pursuant
to § 52-1-36.” Therefore, it is fair to conclude that the WCA considered the second
complaint as a continuation or a mere reopening of the first complaint, and not as an entirely

                                                12
new case. Importantly, there is no dispute that the first complaint, filed on October 1, 2003,
was timely.

{50} The Court of Appeals placed great reliance on the mediator’s words, “dismissal
without prejudice,” concluding that Mrs. Schultz had to start all over within the constraints
of the old limitation period. We conclude that the Court of Appeals misread what occurred
below. We question whether a dismissal without prejudice from a mediator, following an
informal mediation process conducted at the WCA, was intended to have the harsh
consequences the Court of Appeals gave to this case. Legally, “[t]he words ‘without
prejudice’ when used in an order or decree generally indicate that there has been no
resolution of the controversy on its merits and leave the issues in litigation open to another
suit as if no action had ever been brought.” Bralley v. City of Albuquerque, 102 N.M. 715,
719, 699 P.2d 646, 650 (Ct. App. 1985).

{51} Yet, mediations at the WCA are “informal meetings with no transcript of the
proceedings” where “[n]o motions practice shall be allowed.” 11.4.4.10(C)(7)(c) NMAC
(12/31/12). The mediator’s duties include “mak[ing] recommendations on all issues
remaining in dispute” and issuing a recommended resolution. 11.4.4.10(C)(6)(b) & (d)
NMAC. Unlike a court, it does not appear that a mediator has the authority to dismiss a case
without prejudice, as a judge could. See 11.4.4.10(C)(6)(a) & (c) NMAC (describing the
purposes of the mediation conference and duties of the mediator, stating that the parties shall
come together, “attempt to settle disputed issues by discussing the facts . . . and by
suggesting compromises or settlements,” and also that the mediator could “state an opinion
of the strength of any argument or position, and the possible results if the complaint is tried
by a judge”).

{52} No one at the WCA entered a formal order dismissing the case without prejudice,
although the recommended resolution did become binding on the parties after thirty days
when neither party formally rejected or accepted the resolution. See 11.4.4.10(D)(5)(a)
NMAC (“Failure to timely accept or reject the recommended resolution shall conclusively
bind the parties to the recommended resolution.”). It appears that the use of the term
“dismissal without prejudice” had consequences beyond what the mediator intended. As
previously stated, the mediator was trying to assist Mrs. Schultz, who came to the first
mediation with only her pastor, not her attorney. See Schultz, 2012-NMCA-015, ¶ 49 (Sutin,
J., specially concurring) (recognizing the harsh result of the dismissal without prejudice in
this case and wondering “why the workers’ compensation process could not . . . have
accommodated [Mrs. Schultz] 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”). Considering all the circumstances, we conclude that neither
the WCA nor the mediator intended an outright dismissal or that a second complaint would
have to begin anew to satisfy the limitation period.

{53} Moreover, even if we were to consider the second complaint as completely
independent of the first, we are satisfied that it was filed within a reasonable period of time

                                              13
as Section 52-1-36 envisions. In Elsea, the worker took an additional seven months to file
his complaint. We fail to see why a similar period of time would be unreasonable in this
case. 47 N.M. at 364, 143 P.2d at 576-77.

CONCLUSION

{54} We reverse and remand to the Court of Appeals to determine whether Schultz died
within the course and scope of his employment.

{55}   IT IS SO ORDERED.

                                            ____________________________________
                                            RICHARD C. BOSSON, Justice

WE CONCUR:

____________________________________
PETRA JIMENEZ MAES, Chief Justice

____________________________________
EDWARD L. CHÁVEZ, Justice

____________________________________
CHARLES W. DANIELS, Justice

____________________________________
BARBARA J. VIGIL, Justice

Topic Index for Schultz v. Pojoaque Tribal Police Dep’t, No. 33,372

APPEAL AND ERROR
Remand
Standard of Review

CIVIL PROCEDURE
Estoppel
Limitation of Actions

STATUTES
Legislative Intent

WORKERS COMPENSATION

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Death Benefits
Scope of Employment
Time Limitation




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