Schultz ex rel. Schultz v. Pojoaque Tribal Police Dep't
| Decision Date | 06 December 2011 |
| Docket Number | No. 28,508.,28,508. |
| Citation | 2012 -NMCA- 015,269 P.3d 14 |
| Parties | Cheryl SCHULTZ on behalf of Kevin Schultz (deceased), Worker–Appellant, v. POJOAQUE TRIBAL POLICE DEPARTMENT, and New Mexico Mutual Casualty Company, Employer/Insurer–Appellees. |
| Court | Court of Appeals of New Mexico |
OPINION TEXT STARTS HERE
Law Offices of George Wright Weeth, George Wright Weeth, Albuquerque, NM, for Appellant.
Riley, Shane & Keller, P.A., Richard J. Shane, Kristin J. Dalton, Albuquerque, NM, for Appellees.
{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.
{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:
[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.
{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 ().
{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. 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 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 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, 146 N.M. 453, 212 P.3d 341; see also Nelson v. Homier Distrib. Co., 2009–NMCA–125, ¶¶ 7, 11, 147 N.M. 318, 222 P.3d 690 ().
{11} As a preliminary matter, we clarify when the one-year limitations period began to accrue in this...
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Schultz ex rel. Schultz v. Pojoaque Tribal Police Dep't
...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. ¶ ......