A. There is imposed upon every employer a liability for the payment of compensation to every employee of such employer who suffers total disablement by reason of an occupational disease arising out of his employment, subject to the following conditions:

(1) no compensation shall be paid when the last day of injurious exposure of the employee to the hazards resulting in an occupational disease occurred prior to the passage of the New Mexico Occupational Disease Disablement Law; and

(2) no compensation shall be paid in case of silicosis or asbestosis unless during the ten years immediately preceding the disablement the injured employee was exposed to harmful quantities of silicon dioxide dust or asbestos dust for a total period of no less than twelve hundred fifty work shifts in employment in this state and unless disablement results within two years from the last day upon which the employee actually worked for the employer against whom compensation is claimed. For the purpose of computing work shifts under this section, employment for less than one-half of a normal shift shall be disregarded, and employment for one-half or more of a normal shift shall be deemed a full shift.

B. There is imposed upon every employer a liability for the payment of compensation to the dependents of every employee in cases where death results from an occupational disease arising out of his employment, subject to the following conditions:

(1) no compensation shall be paid when the last day of exposure of the employee to the hazards resulting in death from occupational disease occurred prior to the passage of the New Mexico Occupational Disease Disablement Law;

(2) no compensation shall be paid for death from silicosis or asbestosis unless during the ten years immediately preceding the disablement the deceased employee was exposed to harmful quantities of silicon dioxide dust or asbestos dust for a period of not less than twelve hundred fifty work shifts in this state;

(3) no compensation shall be paid for death from silicosis or asbestosis unless the death results within two years from the last day upon which the employee actually worked for the employer against whom compensation is claimed, except in those cases where death results during a period of continuous disablement from silicosis or asbestosis for which compensation has been paid or awarded or for which a claim, compensable but for such death, is on file with the director, and in these cases compensation shall be paid if death results within five years from the last day upon which the employee actually worked for the employer against whom compensation is claimed; and

(4) no compensation shall be paid for death from an occupational disease other than silicosis or asbestosis unless death results within one year from the last day upon which the employee actually worked for the employer against whom compensation is claimed, except in those cases where death results during a period of continuous disablement from an occupational disease other than silicosis or asbestosis for which compensation has been paid or awarded or for which a claim, compensable but for such death, is on file with the director, and in these cases compensation shall be paid if death results within three years from the last day upon which the employee actually worked for the employer against whom compensation is claimed.

C. The time limits prescribed by this section shall not apply in the case of an employee whose disablement or death is due to occupational exposure to radioactive or fissionable materials, provided no compensation shall be paid in such a case unless such disablement or death occurs within ten years from the last day upon which the employee actually worked for the employer against whom compensation is claimed.

History: 1941 Comp., § 57-1110, enacted by Laws 1945, ch. 135, § 10; 1953 Comp., § 59-11-10; Laws 1965, ch. 39, § 1; 1973, ch. 239, § 4; 1986, ch. 22, § 56.

Unconstitutional. — Although the legislative goal and the time limit of maintaining reasonable costs to employers under the workers' compensation system is a legitimate legislative goal and the time limit prescribed by this section is rationally related to this legislative goal because it lowers employer costs by eliminating all claims arising more than ten years after the last day of employment, this section is unconstitutional as it is currently enacted because it abridges the substantive due process rights of claimants contracting diseases ten to fifteen years after radiation exposure. Schirmer v. Homestake Mining Co., 1994-NMSC-095, 118 N.M. 420, 882 P.2d 11.

"Death" and "disablement" provisions in Subsection C do not apply independently. A disablement claim filed within the 10-year period may be used to make a death claim timely when the death claim is filed after the 10-year period has elapsed. Hubbs v. Sandia Corp., 1982-NMCA-110, 98 N.M. 389, 648 P.2d 1202, cert. denied, 98 N.M. 478, 649 P.2d 1391.

Determination of estoppel through analysis of facts. — Whether or not the conduct of an employer constitutes estoppel, thereby precluding its reliance on the defense available under Subsection A(2), can be determined only through an analysis of the facts. McDonald v. Kerr-McGee Corp., 1979-NMCA-088, 93 N.M. 192, 598 P.2d 654.

Limitation on silicosis claim. — Surviving spouse's claim for death benefits, filed within one year after her husband died of silicosis, was untimely under Subsection B(3), where her husband died sixteen years after the date of his last employment. Tapia v. Springer Transfer Co., 1987-NMCA-089, 106 N.M. 461, 744 P.2d 1264, cert. denied, 106 N.M. 405, 744 P.2d 180.

Release not bar to dependents' death claim. — A worker's dependents are entitled to an award of death benefits if death arises or proximately results from an occupational disease, notwithstanding what the worker received or was deemed entitled to receive during his lifetime; thus, surviving dependents were entitled to death benefits notwithstanding any release the worker may have executed in his lifetime. Buchanan v. Kerr-McGee Corp., 1995-NMCA-131, 121 N.M. 12, 908 P.2d 242, cert. denied, 120 N.M. 715, 905 P.2d 1119.

Am. Jur. 2d, A.L.R. and C.J.S. references. — When time period commences as to claim under workers' compensation or occupational diseases act for death of worker due to contraction of disease, 100 A.L.R.5th 567.