(specially concurring).
I specially concur.
A. Delay in workmen’s compensation cases should be avoided.
Delays in workmen’s compensation cases is an occurrence that often violates the spirit and purpose of the law. Weiss v. Hanes Mfg. Co., 90 N.M. 683, 568 P.2d 209 (Ct.App. 1977); Casaus v. Levi Strauss & Co., 90 N.M. 558, 566 P.2d 107, State Bar of New Mexico Bulletin, Vol. 16, No. 21, p. 1928. Delays should be noted by district judges. An explanation of the delay should be made a part of the record. Without an explanation, an appellate court cannot determine whether a labor of love was undertaken in the work.
Plaintiff’s complaint was filed July 21, 1975. Defendants’ answer was filed August'26, 1976, thirteen months later. The record does not disclose what occurred during the interim period. On January 3,1977, seventeen months after the complaint was filed, the case came on for hearing. On the morning of the hearing, defendants orally raised the defense that the one year limitation period barred plaintiff’s right of action (Section 59-10-13.6(A), N.M.S.A.1953 (2d Repl.Vol. 9, pt. 1) for the negligent failure of the employer to provide plaintiff with a safety device. (Section 59-10-7).
It does not require clairvoyance to state that defendants’ attorney, an able and competent member of the Bar, knew or should have known of this “alleged” defense upon receipt of the plaintiff’s complaint. To wait seventeen months to present it to the court on the morning of the hearing indicates to me that serious doubts existed in his mind as to the applicability of § 59-10-13.6(A). “To throw the spanner in the works” means to throw a wrench in the proceedings that create difficulties and obstructions to a hearing on the merits. The trial court became confused by the wreckage and ruled in defendants’ favor.
Defendants had the right to throw the “monkey wrench,” but it should have been thrown seventeen months earlier. This delay should be avoided.
B. Section 59-10-13.6 is not applicable to the safety device provision.
Section 59-10-13.6(A) provides:
. [I]f the workman fails to file a claim for compensation within the time required by this section [1 year], his claim for compensation, all his right to recovery of compensation and the bringing of any legal proceeding for the recovery of compensation are forever barred. [Emphasis added].
This provision is often designated as a statute of limitations. It is not. This statute bars the right as well as the remedy. In civil cases, a statute of limitations is an affirmative defense. Section 21-1-1(8)(c), N.M.S.A.1953 (Repl.Vol.4). Under the Workmen’s Compensation Act, it is not, even though the Rules of Civil Procedure apply. The reason is that § 59-10-13.6 is jurisdictional and bars the right to bring the action.
Section 59-10-13.6 is a limitation on the right of action, and not a mere limitation on the right of remedy. It is absolute and unconditional, and it is not subject to pleas of waiver and estoppel. Taylor v. Am. Employers’ Ins. Co. of Boston, Mass., 35 N.M. 544, 3 P.2d 76 (1931). This rule has remained unchanged. Lucero v. White Auto Stores, 60 N.M. 266, 291 P.2d 308 (1956). Taylor quotes the following:
“A statute which in itself creates a new liability gives an action to enforce it unknown to the common law, and fixes the time within which that action may be commenced, is not a statute of limitations.. It is a statute of creation, and the commencement of the action within the time it fixes is an indispensable condition of the liability and of the action which it permits.” [Emphasis added]. [35 N.M. at 549, 3 P.2d at 78].
See also Howell v. Burke, 90 N.M. 688, 568 P.2d 214 (Ct.App.1977), (Sutin, J. dissenting).
It is wise to recognize this distinction. Else attorneys will continue to claim that a statute of limitations is an affirmative defense to be pleaded in a workmen’s compensation case. The language in § 59-10-13.6, supra, was included in the original act passed in 1929, 48 years ago. It has never been modified or repealed. In my opinion, the New Mexico rule is too harsh. “The majority rule is that strict compliance with notice and claim requirements may be waived by the employer or insurer.” 3 Larson’s Workmen’s Compensation Law, Section 78.70 (1976). A change in the rule rests within the discretion of the Supreme Court or the legislature.
Martinez v. Earth Resources, Inc., 90 N.M. 590, 566 P.2d 838 (Ct.App.1977), by way of dicta, stated that a statute of limitations is not jurisdictional. I agree with the spirit expressed. However, in a special concurring opinion, I stated that “Section 59-10-13.6 applies to the initial claim for compensation. It does not apply to reopening procedures." [566 P.2d at 842],
Section 59-10-7 on the subject of safety devices was also included in the original Workmen’s Compensation Act enacted in 1929. Forty-eight years have passed. The limitation period as a bar has not heretofore been raised in safety device cases. The safety device provision involves a case of negligence — negligent failure of the employer to supply reasonable safety devices. Apodaca v. Allison & Haney, 57 N.M. 315, 258 P.2d 711 (1953); Baca v. Gutierrez, 77 N.M. 428, 423 P.2d 617 (1967). It contains no limitation period in which to commence proceedings for the recovery of a 10% penalty. This penalty is not compensation. If the legislature intended to make § 59-10-13.6 applicable to a negligence action, it would have so provided.
It is wise for the legislature to confine the limitation period to the initial claim for compensation. Some statutes provide for specific provisions as to the time for the institution of proceedings for review and modification of an award. Various conclusions in statutory construction have occurred. See, Creel v. Industrial Commission, 54 Ill.2d 580, 301 N.E.2d 275 (1973); Binswanger Glass Company v. Wallace, 214 Va. 70, 197 S.E.2d 191 (1973); Ball v. Industrial Commission, 30 Colo.App. 583, 503 P.2d 1040 (1972); 82 Am.Jur.2d Workmen’s Compensation, § 605 (1976).
In my opinion, § 59-10-13.6 is applicable only to the initial claim for compensation and not otherwise.