{ "id": 1584642, "name": "Mardell LENT, Plaintiff-Appellant, v. EMPLOYMENT SECURITY COMMISSION OF the STATE of NEW MEXICO and Fireman's Fund Insurance Company and Travelers Indemnity, Defendants-Appellees", "name_abbreviation": "Lent v. Employment Security Commission", "decision_date": "1982-09-28", "docket_number": "No. 5642", "first_page": "407", "last_page": "415", "citations": [ { "type": "official", "cite": "99 N.M. 407" }, { "type": "parallel", "cite": "658 P.2d 1134" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "170 P. 54", "category": "reporters:state_regional", "reporter": "P.", "year": 1918, "opinion_index": 0 }, { "cite": "23 N.M. 567", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2397030 ], "year": 1918, "opinion_index": 0, "case_paths": [ "/nm/23/0567-01" ] }, { "cite": "56 N.M. 31", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1584780 ], "weight": 2, "year": 1952, "opinion_index": 0, "case_paths": [ "/nm/56/0031-01" ] }, { "cite": "71 A.L.R.2d 1247", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "year": 1960, "opinion_index": 0 }, { "cite": "50 N.M. 155", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1577066 ], "weight": 2, "year": 1946, "opinion_index": 0, "case_paths": [ "/nm/50/0155-01" ] }, { "cite": "81 N.M. 462", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5359330 ], "weight": 2, "year": 1970, "opinion_index": 0, "case_paths": [ "/nm/81/0462-01" ] }, { "cite": "173 P. 196", "category": "reporters:state_regional", "reporter": "P.", "year": 1918, "opinion_index": 0 }, { "cite": "24 N.M. 227", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8512711 ], "year": 1918, "opinion_index": 0, "case_paths": [ "/nm/24/0227-01" ] }, { "cite": "105 Ariz. 442", "category": "reporters:state", "reporter": "Ariz.", "case_ids": [ 4209052 ], "weight": 2, "year": 1970, "opinion_index": 0, "case_paths": [ "/ariz/105/0442-01" ] }, { "cite": "66 N.M. 369", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2848670 ], "weight": 3, "year": 1960, "opinion_index": 0, "case_paths": [ "/nm/66/0369-01" ] }, { "cite": "57 N.M. 217", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8841603 ], "weight": 3, "year": 1953, "opinion_index": 0, "case_paths": [ "/nm/57/0217-01" ] }, { "cite": "61 N.M. 265", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5317330 ], "weight": 2, "year": 1956, "opinion_index": 0, "case_paths": [ "/nm/61/0265-01" ] }, { "cite": "93 N.M. 584", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1568812 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/93/0584-01" ] }, { "cite": "86 N.M. 294", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2822481 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/86/0294-01" ] }, { "cite": "56 N.M. 793", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1584767 ], "weight": 3, "year": 1952, "opinion_index": 0, "case_paths": [ "/nm/56/0793-01" ] }, { "cite": "93 N.M. 182", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1568760 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/93/0182-01" ] }, { "cite": "46 L.Ed.2d 400", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1975, "opinion_index": 0 }, { "cite": "96 S.Ct. 469", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1975, "opinion_index": 0 }, { "cite": "423 U.S. 1025", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6470017, 6469636, 6469832, 6469738, 6470099, 6469941, 6469528, 6469407 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/us/423/1025-07", "/us/423/1025-03", "/us/423/1025-05", "/us/423/1025-04", "/us/423/1025-08", "/us/423/1025-06", "/us/423/1025-02", "/us/423/1025-01" ] }, { "cite": "87 N.M. 400", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2830945 ], "weight": 2, "year": 1975, "opinion_index": 0, "case_paths": [ "/nm/87/0400-01" ] }, { "cite": "609 P.2d 15", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10445185 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/p2d/609/0015-01" ] }, { "cite": "9 A.L.R.2d 964", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "weight": 2, "year": 1950, "pin_cites": [ { "page": "965" } ], "opinion_index": 0 }, { "cite": "17 L.Ed.2d 95", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1966, "opinion_index": 0 }, { "cite": "87 S.Ct. 131", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1966, "opinion_index": 0 }, { "cite": "385 U.S. 867", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11376801, 11376706, 11376610, 11376930, 11376756, 11376982, 11376858, 11376667, 11376542 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/us/385/0867-06", "/us/385/0867-04", "/us/385/0867-02", "/us/385/0867-08", "/us/385/0867-05", "/us/385/0867-09", "/us/385/0867-07", "/us/385/0867-03", "/us/385/0867-01" ] }, { "cite": "76 N.M. 49", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8500356 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/76/0049-01" ] }, { "cite": "39 N.M. 168", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1573434 ], "weight": 2, "year": 1935, "opinion_index": 0, "case_paths": [ "/nm/39/0168-01" ] }, { "cite": "63 N.M. 263", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2777861 ], "weight": 2, "year": 1957, "opinion_index": 0, "case_paths": [ "/nm/63/0263-01" ] }, { "cite": "67 N.M. 399", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2716665 ], "weight": 3, "year": 1960, "opinion_index": 0, "case_paths": [ "/nm/67/0399-01" ] }, { "cite": "95 N.M. 117", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1575447 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/95/0117-01" ] }, { "cite": "94 N.M. 656", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1573100 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/94/0656-01" ] }, { "cite": "92 N.M. 98", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557037 ], "weight": 2, "year": 1978, "opinion_index": 0, "case_paths": [ "/nm/92/0098-01" ] }, { "cite": "83 N.M. 789", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5334147 ], "weight": 3, "year": 1972, "opinion_index": 0, "case_paths": [ "/nm/83/0789-01" ] }, { "cite": "80 N.M. 241", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5360910 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/80/0241-01" ] }, { "cite": "79 N.M. 444", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2749848 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/79/0444-01" ] }, { "cite": "74 N.M. 555", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2801987 ], "weight": 2, "year": 1964, "opinion_index": 0, "case_paths": [ "/nm/74/0555-01" ] }, { "cite": "96 N.M. 376", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1577371 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/96/0376-01" ] } ], "analysis": { "cardinality": 990, "char_count": 25431, "ocr_confidence": 0.816, "pagerank": { "raw": 1.9580604029241866e-07, "percentile": 0.7376460944248101 }, "sha256": "62beaf884f7e2464bc83cc2438d98f71bd803f48c0c4aff422868488fcff01f6", "simhash": "1:510657c62e15fc15", "word_count": 4106 }, "last_updated": "2023-07-14T20:36:40.875408+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "LOPEZ and NEAL, JJ., concur." ], "parties": [ "Mardell LENT, Plaintiff-Appellant, v. EMPLOYMENT SECURITY COMMISSION OF the STATE of NEW MEXICO and Fireman\u2019s Fund Insurance Company and Travelers Indemnity, Defendants-Appellees." ], "opinions": [ { "text": "OPINION\nWOOD, Judge.\nPlaintiffs claim for worker\u2019s compensation alleged that she suffered a compensable accidental injury, \u00a7 52-1-28, N.M.S.A. 1978; that her injury was a psychological injury, Schober v. Mountain Bell Tel., 96 N.M. 376, 630 P.2d 1231 (Ct.App.1980), which began to manifest itself several months prior to the termination of her employment. The compensation claim was filed approximately 22 months after she was discharged from her employment. The trial court granted summary judgment in favor of defendants on the basis that the compensation claim was not timely filed. Section 52-1-31, N.M.S.A.1978. Plaintiff appeals. We discuss: (1) when the limitation period began to run; (2) procedural posture of the case; (3) mental capacity; (4) asserted factual issues; (5) excuse for late filing; and (6) tolling of the limitation period after it began to run.\nWhen the Limitation Period Began\nWhen it is reasonably apparent, or should be reasonably apparent, that a worker has an injury on account of which she is entitled to compensation and the employer fails to pay compensation to which the worker is entitled, the worker has a right to file a compensation claim, and the limitation period of \u00a7 52-1-31, supra, begins to run from that date. Jowers v. Corey\u2019s Plumbing & Heating, 74 N.M. 555, 395 P.2d 827 (1964). As Noland v. Young Drilling Company, 79 N.M. 444, 444 P.2d 771 (Ct.App.1968), explains: \u201cthe failure to pay compensation when it becomes payable starts the period of limitations running.\u201d\nPlaintiff does not attack the validity of this general rule. This panel recognizes that Montano v. ABF Freight System, (Ct. App.) No. 5218, filed April 20, 1982 (21 St.B.Bull. No. 31) has caused uncertainty as to the continued validity of this long-standing general rule. We note that the Supreme Court granted certiorari in Montano on June 15, 1982, and until Montano is a final decision, we decline to follow it.\nPlaintiff contends that the limitation period may begin to run at different times, depending on the degree of disability. In the trial court, plaintiff asserted that even though the limitation period may have run for a partial disability, that a new limitation period began when plaintiff became totally disabled in June, 1980. Such a contention is incorrect. As Noland v. Young Drilling Company, supra, points out, when it is apparent, or should be apparent, that a worker has a compensable disability and the employer refuses or fails to pay compensation, the limitation period begins to run: \u201cThere is nothing in the [compensation] act ... which indicates that the running of the statute may be delayed until a more serious disability is ascertainable.\u201d See Cordova v. Union Banking Company, 80 N.M. 241, 453 P.2d 761 (Ct.App.1969).\nSection 52-1-31, supra, states: \u201cThis one year period of limitations shall be tolled during the time a workman 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.\u201d\nThe compensation claim alleges a partial disability which manifested itself several months prior to the date plaintiff was discharged. \u25a0 The deposition testimony shows that plaintiff knew about the asserted partial disability; she gave oral notice of a compensation claim more than one month prior to her discharge. She was discharged on June 19, 1979; the limitation period began to run, under the general rule, on June 20,1979. Her compensation claim was filed April 24, 1981. Plaintiff seeks to avoid application of the general rule; avoidance is sought on the basis of her mental condition.\nProcedural Posture\nPlaintiff seems to contend that defendants\u2019 showing, in the trial court, was insufficient for a summary judgment. This contention misappraises the two procedural burdens involved.\nFirst, defendants, seeking summary judgment, had the initial burden of a prima facie showing that they were entitled to summary judgment. Goodman v. Brock, 83 N.M. 789, 498 P.2d 676 (1972). Defendants made a prima facie showing that plaintiff\u2019s claim was barred by the time limitation in \u00a7 52-1-31, supra. Once defendants made this showing, plaintiff had the burden of showing there was an issue defeating summary judgment. That issue must be one of a genuine material fact. Stringer v. Dudoich, 92 N.M. 98, 583 P.2d 462 (1978); Goodman v. Brock, supra.\nSecond, defendants, seeking summary judgment, had the benefit of a presumption that plaintiff was mentally competent. Matter of Estate of Head, 94 N.M. 656, 615 P.2d 271 (Ct.App.1980) states:\nThe presumption is in favor of competency. To show the contrary, the burden of proof rests on him who so alleges.. . .\nThe reason the presumption of competency exists is due to the fact that mental incompetence is a condition of degree. It may vary from idiocy to almost ordinary mental strength.\nSee also, Matter of Estate of Taggart, 95 N.M. 117, 619 P.2d 562 (Ct.App.1980). We are not concerned here with the quantum of proof, nor with the effect of Evidence Rule 301, either before or after its amendment in 1980, see Judicial Pamphlet 10, N.M.S.A. 1978 (1980 Cum.Supp.), upon prior decisions. Compare Evidence Rule 301 with McElhinney v. Kelly, 67 N.M. 399, 356 P.2d 113 (1960) and In re Owen\u2019s Estate, 63 N.M. 263, 316 P.2d 1077 (1957). Plaintiff, opposing summary judgment on the basis of her mental capacity, had the burden of showing a genuine factual issue as to her mental capacity and that such an issue was a material issue. Evidence Rule 301, both prior to and after the 1980 amendment, supra; In re Riedlinger\u2019s Will, 39 N.M. 168, 42 P.2d 1113 (1935).\nUnder both the summary judgment requirement and the requirements for opposing a presumption, our concern is not with defendants\u2019 showing; defendants made a prima facie showing for summary judgment. Our concern is whether plaintiff\u2019s showing was sufficient to defeat summary judgment.\nMental Capacity\nIn asserting that factual and legal issues exist as to the applicability of the time to sue requirements of \u00a7 52-1-31, supra, plaintiff claims that during pertinent times she lacked mental capacity: \u201cIt was not until the spring of 1981 that I was mentally competent to protect and pursue my legal rights.\u201d\nOur concern, in this issue, is the meaning of mental capacity when the asserted lack of capacity is relied on to defeat the application of a time to sue provision. We are not concerned with incompetency to stand trial in a criminal proceeding, or \u201cinsanity\u201d at the time of commission of a criminal offense. See R.Crim.Proc. 35, N.M.S.A.1978 (1982 Cum.Supp.). Nor are we concerned with the \u201cmental disorder\u201d required by the Mental Health Code for commitments. Section 43-l-3(N), N.M.S.A.1978. Further, we are not concerned with a medical diagnosis of whether a person is psychotic or has a personality disorder. See State v. Velasquez, 76 N.M. 49, 412 P.2d 4 (1966), cert. denied, 385 U.S. 867, 87 S.Ct. 131, 17 L.Ed.2d 95 (1966).\n\u201cThe test of mental capacity is whether a person is capable of understanding in a reasonable manner, the nature and effect of the act in which the person is engaged.\u201d Matter of Estate of Head, supra. In connection with the assertion or non-assertion of legal rights, Annot., 9 A.L.R.2d 964 at 965 (1950), states the disability must be such that the person is \u201cunable to manage his business affairs or estate, or to comprehend his legal rights or liabilities.\u201d See also, Adkins v. Nabors Alaska Drilling, Inc., 609 P.2d 15 (Alaska 1980). The test is similar to the test for determining a person\u2019s mental capacity to make a will. McElhinney y. Kelly, supra. The test is also similar to the test for determining a person\u2019s mental capacity to make a valid confession. State v. Lujan, 87 N.M. 400, 534 P.2d 1112 (1975), cert. denied, 423 U.S. 1025, 96 S.Ct. 469, 46 L.Ed.2d 400 (1975).\nTo defeat the motion for summary judgment on the basis of a genuine factual issue, plaintiff had the burden of showing that a factual issue existed as to whether plaintiff was capable of understanding, in a reasonable manner, her legal right to claim compensation and the effect of failure to make a timely claim.\nAsserted Factual Issues\nPlaintiff was discharged in June, 1979; she suffered a severe episode of depression in June, 1980 and, in that month, attempted suicide. Plaintiff contends there is a genuine factual issue as to her mental capacity from an unspecified period of time prior to her discharge until June, 1980. This contention has three parts: (a) mental capacity up to the date of discharge; (b) mental capacity from discharge to June, 1980; and (c) knowledge of injury from discharge to June, 1980.\n(a) Mental capacity to date of discharge.\nPlaintiff points out that for some months prior to discharge she suffered from depression and occasional hysteria, that she was unable to function at her job and the failure to perform her job was the reason she was discharged. She points out that she was under the care of her family doctor, but not a psychiatrist, during this time period. None of these items address the issue of her capacity to understand her legal right to claim compensation.\nIn opposing summary judgment, plaintiff relied on her own affidavit and the affidavit of a psychiatrist who saw plaintiff for the first time after the suicide attempt. Neither affidavit addresses plaintiff\u2019s mental capacity prior to or at the time of discharge.\nThe showing as to mental capacity up to the time of discharge is undisputed. Plaintiff admitted that prior to discharge she gave oral notice that she intended to file a compensation claim. The family doctor treated plaintiff for a variety of complaints, beginning in 1975. The physician noted depression beginning in November, 1977, and stress at work beginning in May, 1978. The physician\u2019s opinion was that plaintiff was \u201calert, oriented\u201d, her thinking process was not \u201cinappropriate\u201d, \u201cshe clearly perceived reality appropriately\u201d and \u201cat no time did I feel that she was out of contact with reality, that her thought process was grossly disturbed.\u201d The time of the physician\u2019s opinion was through June 7, 1979.\nPlaintiff did not meet her burden of showing a genuine factual issue as to her mental capacity up to the time of her discharge in June, 1979.\n(b) Mental capacity from discharge to June, 1980.\nIn contending there was a factual issue as to her mental capacity during this time period, plaintiff relies on her mental condition up to the time of discharge plus additional mental stress resulting from the discharge. The psychiatrist testified in his deposition that on June 10, 1980 plaintiff was seriously suicidal, that the most significant event that deepened plaintiff\u2019s depression was plaintiff\u2019s discharge.\nThere was extensive questioning of the psychiatrist as to the information on which the psychiatrist based his opinions. See Evidence Rules 703 and 705, N.M.S.A.1978. The psychiatrist had not reviewed plaintiff\u2019s medical records in any detail; his opinions were based primarily on some 300 hours of counseling with plaintiff subsequent to the June 10, 1980 episode and information revealed by plaintiff at the counseling. The psychiatrist recognized that documentation of plaintiff\u2019s medical history might influence his opinion. The psychiatrist deposed that plaintiff was incompetent on June 10, 1980, and that there had been periods of competency and incompetency subsequent to that date. The psychiatrist also deposed that plaintiff\u2019s condition prior to June 10, 1980 was unknown, that the lawyers had more information on this than the psychiatrist. We are not concerned with factual issues of causation or the extent of disability but with competency. The psychiatrist\u2019s deposition raised no factual issue as to plaintiff\u2019s competency between the discharge and June 10, 1980. The psychiatrist\u2019s affidavit is consistent with his deposition. The opinion in the affidavit refers to incapacity beginning in June, 1980.\nPlaintiff\u2019s affidavit refers to her alleged on-the-job psychological injury, her depression, her discharge, her deepening depression subsequent to the discharge and her suicide attempt in June, 1980. Plaintiff\u2019s affidavit states the conclusion that plaintiff was not competent to protect or pursue her legal rights until the spring of 1981. Assuming, but not deciding, that plaintiff was qualified to state a conclusion as to her mental competency, the facts referred to in the affidavit provide no basis for the affidavit\u2019s conclusion as to competency; specifically, plaintiff\u2019s perceptions as a non-expert do not support her opinion concerning competency. Evidence Rule 701, N.M.S.A.1978; see Matney v. Evans, 93 N.M. 182, 598 P.2d 644 (Ct.App.1979). Further, plaintiff\u2019s affidavit does not suggest incompetency prior to June, 1980.\nPlaintiff did not meet her burden of showing a genuine factual issue as to her mental capacity from her discharge to June, 1980.\n(c) Knowledge of injury from discharge to June, 1980.\nPlaintiff\u2019s brief states:\nIf, as the Defendants maintain, Mardell Lent was competent at the time of her discharge, then we maintain that her injury was latent until she required psychiatric treatment in June, 1980. If that is the case, then she filed her compensation claim well within one year of the date on which she knew or should have known of her injury.\nPlaintiff recognizes that this latent injury contention depends upon whether there is a factual issue as to when she knew or should have known of her injury. This, in turn, depends upon her mental capacity to \u201cknow\u201d. Her argument for latency has two parts.\nFirst, plaintiff asserts that her own testimony about oral notice concerning a compensation claim should be disregarded, and that until June, 1980 \u201cthere is little evidence that the Plaintiff was aware she had sustained injuries which would be compensated under Workmen\u2019s Compensation.\u201d Our answer is that plaintiff deposed as to her knowledge of a psychological injury pri- or to her discharge. The deposition testimony is substantial; it is also uncontradicted.\nSecond, plaintiff contends she filed her claim as soon as she \u201cwas capable of recognizing the extent of her injury and of taking steps to protect her legal rights\u201d. Our answer is that there is no factual issue as to her mental competency prior to June 10, 1980, and that knowledge of injury, not knowledge of the extent of the injury, is the basis for starting the running of the limitation period. See discussion under the first issue in this opinion.\nPlaintiff did not meet her burden of showing a genuine factual issue as to when she knew about her alleged injury.\nExcuse for Late Filing\nOn the assumption that there were genuine factual issues as to plaintiff\u2019s mental capacity, plaintiff claims that the limitation period of \u00a7 52-1-31, supra, never began to run; alternatively, that the limitation period did not begin to run on June 10, 1979. Under this assumption, the question is whether a factual issue as to mental capacity is a material issue; materiality is a legal issue. We have held there was no genuine factual issue as to her mental capacity up to June 10,1980; thus, there is no factual predicate for the legal contentions identified in this issue. However, we answer the plaintiff\u2019s legal contentions as an alternative decisional ground. If it should be determined that we are incorrect, and that there are genuine factual issues as to plaintiff\u2019s mental capacity, those factual issues are not material because the legal contentions are without merit. The legal contentions involve (a) statutory provisions and (b) principle and policy.\n(a) Statutory provisions.\nAnnot., 9 A.L.R.2d 964, supra, states:\nAs a general rule, unless some saving clause or exception therein expressly provides, persons of unsound mind are not excepted from the running of the statute of limitations. It should be noted, however, that in most jurisdictions the limitation statutes contain exceptions in favor of persons mentally incompetent.\nSection 37-1-10, N.M.S.A.1978 states:\nThe times limited for the bringing of actions by the preceding provisions of this chapter shall, in favor of minors and incapacitated persons, be extended so that they shall have one year from and after the termination of such incapacity within which to commence said actions.\nBecause \u00a7 37-1-10, supra, refers to incapacitated persons, plaintiff contends this statute should extend the time for a mentally incompetent person to file a compensation claim. This argument disregards the wording of \u00a7 37-1-10, supra, which applies to time limitations of \u201cthis chapter\u201d. The time limitation for filing a compensation claim is not part of \u201cthis chapter\u201d.\nSection 37-1-17, N.M.S.A.1978 states:\nNone of the preceding provisions of this chapter shall apply to any action or suit which, by any particular statute of this state, is limited to be commenced within a different time, nor shall this chapter be construed to repeal any existing statute of the state which provides a limitation of any action; but in such cases the limitation shall be as provided by such statutes.\nUnder \u00a7 37-1-17, supra, the time limitations of the compensation statute apply; \u00a7 37-1-10, supra, does not apply to a compensation claim. Natseway v. Jojola, 56 N.M. 793, 251 P.2d 274 (1952); Noriega v. City of Albuquerque, 86 N.M. 294, 523 P.2d 29 (Ct.App.1974); see Ortega v. Shube, 93 N.M. 584, 603 P.2d 323 (Ct.App.1979).\n\u201cThe remedy provided by the [Compensation] act being complete in itself .. . the period of limitation for beginning suit which is named in the act controls, to the exclusion of the general act of limitations with respect to the time within which actions generally may be commenced.\u201d Swallows v. City of Albuquerque, 61 N.M. 265, 298 P.2d 945 (1956).\nThere being no genuine factual issue as to a latent injury, no issue under \u00a7 52-1-36, N.M.S.A.1978 and no issue under \u00a7 52-1-59, N.M.S.A.1978, the time period for filing a compensation claim is stated in \u00a7 52-1-31, supra.\nPlaintiff does not contend that an extension for lack of mental capacity is stated in \u00a7 52-1-31, supra. Her argument is that the New Mexico appellate courts have never specifically held that \u00a7 52-1-31, supra, does not authorize such an extension and \u00a7 52-1-31, supra, should be construed to provide such an extension. Our answer is that \u00a7 52-1-31, supra, unambiguously states a time limitation and provides no exceptions to the limitation.\nConsidering the claim of a minor dependent, Sanchez v. Bernalillo County, 57 N.M. 217, 257 P.2d 909 (1953), held: \u201cThere is no ... provision in our [Compensation] Act which saves the rights of dependents under disability from the running of limitations .... \u201d Selgado v. New Mexico State Highway Department, 66 N.M. 369, 348 P.2d 487 (1960), also considered the limitation period for a minor dependent. Selgado states that the compensation statute \u201ccontains no exception tolling the limitation by reason of minority or incompetency.\u201d (Our emphasis.) \u201c[T]he courts cannot provide a saving clause or create an exception where the statute contains none.\u201d Natseway v. Jojola, supra.\nNo statutory provision extends, for lack of mental capacity, the time for filing a compensation claim.\n(b) Principle and policy.\nPlaintiff contends this Court should establish, judicially, an exception excusing a late compensation claim because of mental incompetence. She asserts that the exception should be established because of a \u201cmental competency principle\u201d that a plaintiff\u2019s rights should be vindicated. See Brooks v. Southern Pacific Company, 105 Ariz. 442, 466 P.2d 736 (1970). She also asserts that the exception should be established because the compensation statute should be liberally construed in favor of the worker.\nPlaintiff relies on 3 Larson\u2019s Workmen\u2019s Compensation Law \u00a7 78.46 (1976) which reads: \u201cMental or physical incompetence is a common excuse for lateness in filing claim, in the absence of appointment of a conservator or guardian. For this purpose extreme illiteracy or a \u2018beclouded mind\u2019 have been brought within the reach of the mental incompetency principle.\u201d This \u201cprinciple\u201d is not, however, limited to compensation law. Larson, supra, \u00a7 78.49 states: \u201cMany of the questions in this area depend on state rules applicable to limitations generally, and present no distinctive issue of compensation law. . .. \u201d\nInstead of a special \u201cmental competency principle\u201d, we look to the principle of limitations generally.\n[T]he legislature of New Mexico had in mind the general rule that exceptions contained in statutes of limitations in favor of particular persons or classes are to be construed with strictness, and that implied or equitable exceptions are not to be grafted upon the statute where the legislature has not made the exception in express words in the statute.\nMusgrave v. McManus, 24 N.M. 227, 173 P. 196 (1918). \u201cAlthough the law favors the right of action rather than the right of limitation ... exceptions to statutes of limitation must be construed strictly .. . . \u201d Slade v. Slade, 81 N.M. 462, 468 P.2d 627 (1970).\nPlaintiff\u2019s \u201cliberal construction\u201d contention is answered in Sanchez v. Bernalillo County, supra:\n[I]t is not the province of the court, but of the legislature, to make changes in the provisions of statute law. Where the law-making body has specified clearly who shall be entitled to compensation benefits and under what circumstances, the court should not alter the conditions required to obtain such benefits.\nA rule of liberal construction does not permit us to disregard statutory language. Selgado v. New Mexico State Highway Department, supra.\nEven if there were a genuine factual issue as to plaintiff\u2019s mental capacity, that issue was not a material issue because there is no statutory provision excluding mental incompetency from the running of the limitation period. The limitation period began to run in this case on June 20, 1979.\nTolling After the Time Limitation Began to Run\nIt is not disputed that plaintiff lacked mental capacity on June 10, 1980. The one year limitation period would not have expired until June 20, 1980. Plaintiff claims the limitation period was tolled on June 10, 1980 and did not begin to run again until she regained mental capacity. Plaintiff\u2019s position is that she must have been mentally competent for ten days between June 10, 1980 and April 24, 1981, the date she filed the compensation claim, for the limitation period to have expired.\nThe psychiatrist\u2019s deposition refers to periods of competency and incompetency, but no effort was made to date or identify such periods. The psychiatrist\u2019s affidavit states that plaintiff was not mentally competent to protect her legal rights until the month of January, 1981. The psychiatrist\u2019s affidavit raises no genuine factual issue as to competency for ten days between June 10, 1980 and April 24, 1981.\nPlaintiff\u2019s affidavit concludes that she was not mentally competent to protect and pursue her legal rights until \u201cthe spring of 1981.\u201d Under the procedural posture of this case, plaintiff had the burden of showing a genuine factual issue. Assuming, but not deciding, that plaintiff\u2019s conclusion may be considered, a claim of competency in the spring of 1981 did not fulfill plaintiff\u2019s burden to show a factual issue as to ten days of competency between the spring of 1981 and April 24, 1981.\nEven if there were a genuine factual issue as to a ten-day period of competency between June 10, 1980 and April 24, 1981, that issue was not material.\nIn re Matson's Estate, 50 N.M. 155, 173 P.2d 484 (1946), states: \u201c[W]hen statutes of limitation have begun to run, a disability to sue does not suspend the running of the statute, in the absence of a specific statute enacted for that purpose.\u201d We do not rely on the phrase \u201cdisability to sue\u201d, thus avoiding the question of whether a person lacking mental capacity is \u201cdisabled\u201d from bringing a suit in that person\u2019s name. See Annot, 71 A.L.R.2d 1247 (1960).\nOnce the limitation period begins to run, the running is not suspended unless a statute so provides. Field v. Turner, 56 N.M. 31, 239 P.2d 723 (1952) and Buss v. Kemp Lumber Co., 23 N.M. 567, 170 P. 54 (1918). Our statutes do not provide for the tolling of the limitation period for filing a compensation claim once the time period begins to run. The limitation period, which began on June 20, 1979, was not tolled on June 10,1980. Plaintiff\u2019s periods of mental capacity and incompetency subsequent to June 10,1980 are not material. The limitation period had expired when the compensation claim was filed April 24, 1981.\nThe summary judgment is affirmed. This being an unsuccessful appeal by the worker, no costs are awarded. Section 52-1-39, N.M.S.A.1978.\nIT IS SO ORDERED.\nLOPEZ and NEAL, JJ., concur.", "type": "majority", "author": "WOOD, Judge." } ], "attorneys": [ "Narciso Garcia, Jr., Toulouse, Toulouse & Garcia, Albuquerque, for plaintiff-appellant.", "Louise Gibson, Shaffer, Butt, Thornton & Baehr, P.C., Albuquerque, for defendant-appellee Fireman\u2019s Fund Ins. Co.", "Margo J. McCormick, Miller, Stratvert, Torgerson & Brandt, P.A., Albuquerque, for defendants-appellees Employment Sec. Com\u2019n & Travelers Indem." ], "corrections": "", "head_matter": "658 P.2d 1134\nMardell LENT, Plaintiff-Appellant, v. EMPLOYMENT SECURITY COMMISSION OF the STATE of NEW MEXICO and Fireman\u2019s Fund Insurance Company and Travelers Indemnity, Defendants-Appellees.\nNo. 5642.\nCourt of Appeals of New Mexico.\nSept. 28, 1982.\nRehearing Denied Oct. 13, 1982.\nCertiorari Quashed Jan. 27, 1983.\nNarciso Garcia, Jr., Toulouse, Toulouse & Garcia, Albuquerque, for plaintiff-appellant.\nLouise Gibson, Shaffer, Butt, Thornton & Baehr, P.C., Albuquerque, for defendant-appellee Fireman\u2019s Fund Ins. Co.\nMargo J. McCormick, Miller, Stratvert, Torgerson & Brandt, P.A., Albuquerque, for defendants-appellees Employment Sec. Com\u2019n & Travelers Indem." }, "file_name": "0407-01", "first_page_order": 439, "last_page_order": 447 }