1. A. Any worker claiming to be entitled to benefits under the New Mexico Occupational Disease Disablement Law from any employer shall give notice in writing to his employer of the occupational disease within fifteen days after the beginning of such disablement, unless, by reason of his disablement or some other cause beyond his control, the worker is prevented from giving notice within that time, in which case he shall give notice as soon as may reasonably be done and at all events not later than sixty days after the beginning of such disablement.
2. B. No written notice is required to be given where the employer or any superintendent or foreman or other agent in charge of the work in connection with which the disablement was occasioned had actual knowledge of such disablement.
3. C. Each employer shall post, and keep posted in conspicuous places upon his premises where notices to employees and applicants for employment are customarily posted, a notice that advises workers of the requirement specified in Subsection A of this section to give the employer notice in writing of the disablement within fifteen days of its occurrence. The notice shall be prepared or approved by the director. The failure of an employer to post the notice required in this subsection shall toll the time a worker has to give the notice in writing specified in Subsection A of this section up to but no longer than the maximum sixty-day period.
4. D. An employer may not use lack of notice under this section as a defense to a worker's disablement compensation claim when the employer files a report of accident under Section 52-3-51 NMSA 1978.

History: 1953 Comp., § 59-11-16.1, enacted by Laws 1965, ch. 299, § 6; 1989, ch. 263, § 54; 1990 (2nd S.S.), ch. 2, § 37.

ANNOTATIONS

The 1990 (2nd S.S.) amendment, effective January 1, 1991, rewrote the catchline, substituted "fifteen days" for "thirty days" in Subsection A, and added Subsections C and D.

Notice as required by statute is a condition precedent to the right to plaintiff to recover compensation. Sanchez v. Azotea Contractors, 1973-NMCA-039, 84 N.M. 764, 508 P.2d 34.

Requirement that a written claim be filed is mandatory. Holman v. Oriental Refinery, 1965-NMSC-029, 75 N.M. 52, 400 P.2d 471.

Actual knowledge required to excuse notice. — In workmen's (workers') compensation cases, to excuse the giving of "notice in writing," there must be actual knowledge on the part of the employer, or a superintendent, foreman or other agent in charge of the work in connection with which the accident occurred. This doctrine is stated affirmatively and without exception, and the same rule applies under the Occupational Disease Act. Sanchez v. Azotea Contractors, 1973-NMCA-039, 84 N.M. 764, 508 P.2d 34.

Where claimant had no knowledge of disability. — Where the doctor told claimants to get out of the mine but did not tell the men they were disabled and instead notified the union which requested the men be evaluated of claimants' disability, then the claimants had no knowledge of their disablement until contacted by a representative of their union and therefore had no duty to give notice of their injury to their employer unless the union notified them of their disability. Salazar v. Kaiser Steel Corp., 1973-NMCA-068, 85 N.M. 254, 511 P.2d 580, cert. denied, 85 N.M. 229, 511 P.2d 555.

A company doctor, not shown to be in a position of authority, is not an employer, superintendent, foreman or other agent in charge of the work in connection with which the disablement was occasioned, and therefore oral notice to the company doctor was insufficient. Sanchez v. Azotea Contractors, 1973-NMCA-039, 84 N.M. 764, 508 P.2d 34.

Am. Jur. 2d, A.L.R. and C.J.S. references. — When limitations period begins to run as to claim for disability benefits for contracting of disease under Workers' Compensation or Occupational Diseases Act, 86 A.L.R.5th 295.