Martinez v. Cities of Gold Casino

• Decision Date: 24 April 2009
• Docket Number: No. 28,762.,28,762.
• Citation: 215 P.3d 44,2009 NMCA 087
• Parties: David MARTINEZ, Worker-Appellant, v. CITIES OF GOLD CASINO, Pojoaque Pueblo, and Food Industries Self-Insurance Fund, Employer/Insurer-Appellees.
• Court: Court of Appeals of New Mexico

215 P.3d 44

2009 NMCA 087

David MARTINEZ, Worker-Appellant, v. CITIES OF GOLD CASINO, Pojoaque Pueblo, and Food Industries Self-Insurance Fund, Employer/Insurer-Appellees.

No. 28,762.

Court of Appeals of New Mexico.

April 24, 2009.

Certiorari Denied, No. 31,757, July 15, 2009.

Annie Laurie Coogan, Santa Fe, NM, for Appellant.

Pueblo of Pojoaque Legal Department, Frank A. Demolli, Steffani A. Cochran, Santa Fe, NM, for Appellees.

OPINION

VANZI, Judge.

{1} David Martinez (Worker) appeals from a compensation order granting only partial relief. In the proceedings below, the Workers' Compensation Judge (WCJ) determined that Worker had been wrongfully terminated by his employer, the Cities of Gold Casino (Casino), which does business as Pojoaque Gaming Inc. (PGI). Worker claimed he was terminated in retaliation for having filed a workers' compensation claim. Although the Workers' Compensation Act (the Act) expressly provides that the remedy for retaliatory discharge is mandatory rehiring, the WCJ concluded that he lacked authority to award such relief in this case. A separate tribal entity that had not waived its sovereign immunity was unwilling to reissue the employment license Worker required to resume his former employment. On appeal, Worker challenges this aspect of the compensation order as well as the adequacy of the remedies and cost-sharing provisions established in NMSA 1978, Sections 52-1-28.1, -28.2, and -54(F) (1990, as amended through 2003) of the Act. We reverse in part, affirm in part, and remand for further proceedings.

I. BACKGROUND

A. Worker's Initial Injury and Workers' Compensation Claim

{2} On February 9, 2006, Worker filed a claim with the Workers' Compensation Administration (WCA) against PGI. In his claim, Worker alleged that he suffered an "[o]ccupational injury," to wit, a "tear of [the] ligaments" of his "left foot." This injury was allegedly sustained while "[m]oving ... [a money] cart" during the course of his duties as a "[m]anager—hard and soft count" at the "Cities of Gold Casino Pojoaque Pueblo."

{3} Named as defendants in Worker's complaint were the "Cities of Gold Casino, Pojoaque Pueblo and Food Industries, Industries [sic] Self-Insurance Company." Despite the fact that only these three entities were named by Worker in his complaint, the complex nature of the manner in which the Cities of Gold Casino is owned and operated by the Pojoaque Pueblo (Pueblo) ultimately led to the inclusion of additional defendants during the WCA proceedings. A brief description of the relationships among the various defendants follows.

B. The Defendants

{4} The Casino is a commercial business enterprise that is owned and operated by PGI. PGI is an independent corporation owned by the Pueblo, a federally recognized Indian tribal government. Pursuant to Pueblo Tribal Council Resolution 2006-134, the Buffalo Thunder Development Authority (BTDA), a "political subdivision and unincorporated instrumentality" of the Pueblo, obtained ownership of PGI on December 8, 2006. In addition to being owned and operated by PGI, an entity owned by BTDA, which is in turn a political subdivision of the Pueblo, the Casino and its operations are heavily influenced by the decisions of yet another independent Pueblo entity: the Pueblo of Pojoaque Gaming Commission (PPGC). PPGC is the sole entity responsible for the issuance of gaming licenses that certain employees of the Casino are required to possess pursuant to the gaming compact (Compact) entered into by the Pueblo and the State of New Mexico. In addition to requiring the Pueblo to issue certain Casino employees gaming licenses—which, as noted, the Pueblo does through PPGC—the Compact also requires the Pueblo to provide workers' compensation insurance to all employees working at the Casino "through participation in programs offering benefits at least as favorable as those provided by comparable state programs." The Food Industries Self-Insurance Fund (FISIF) is the workers' compensation insurance carrier PGI contracted with to provide workers' compensation insurance for the employees of the Casino. The Casino, PGI, the Pueblo, BTDA, PPGC, and FISIF were all parties below and are referred to collectively as "Defendants" when referencing the lower court case.

C. Proceedings Before the WCA Regarding Worker's Injury Claim

{5} Once filed, the process of adjudicating Worker's injury claim began with a WCA mediation conference in which Worker, his attorney, and attorneys for Defendants took part. At that time, the parties agreed that "the [WCA] does have jurisdiction over this claim." Aside from this single agreement, the parties were unable to reach a resolution. Thereafter, Casino and FISIF submitted an answer to Worker's complaint. At that time, jurisdiction of the WCA was not contested. The parties subsequently submitted a pretrial order approved by the WCJ, which contained a stipulation that the "[j]urisdiction of [WCA] is not contested." The pretrial order listed Eileen Vialpando (Witness) as one of Worker's potential witnesses for trial. The WCJ heard Worker's claim for medical and compensation benefits and filed a memorandum opinion stating that Worker was entitled to such benefits and directing the parties to file requested findings of fact and conclusions of law.

{6} Eight days after the WCJ's opinion was entered, on November 29, 2006, the PPGC suspended the licenses that Worker and Witness required to perform their employment duties. Employee and Witness were banned from the premises of the Casino until further notice. On January 25, 2007, both Worker's and Witness's licenses were permanently revoked by PPGC resulting in termination of their employment with the Casino and the Pueblo.

{7} Meanwhile, the WCJ issued an order regarding attorney fees related to worker's injury claim. The WCJ found that Worker's attorney was entitled to $6,500 plus gross receipts tax. This payment was to be paid equally by Worker and Defendants.

{8} The WCJ later issued a compensation order memorializing his previous memorandum opinion and including findings of fact and conclusions of law. The WCJ found that the "[WCA] has jurisdiction over the parties" and that the accident that led to Worker's injury occurred in the course and scope of Worker's employment at the Casino. Based on these findings, the WCJ determined that Worker was entitled to compensation in the amount of $38.50 per week for 115 weeks, for a total of $4,427.50.

D. Worker's Bad Faith/Retaliatory Discharge Claim

{9} On February 9, 2007, Worker and Witness submitted a joint complaint with the WCA claiming that the Casino, the Pueblo, and FISIF had engaged in "Bad Faith/Unfair Claims Processing" and "Retaliation" as a direct result of Worker having filed his initial complaint with the WCA and Witness having participated in those proceedings on Worker's behalf. Worker and Witness further specified that their November 29, 2006, suspensions and January 25, 2007, terminations were in violation of Section 52-1-28.1, which prohibits unfair and bad faith claim-processing practices, and Section 52-1-28.2, which prohibits retaliation against employees seeking benefits. This new complaint was filed under the same WCA number as Worker's original complaint, and the matter proceeded accordingly.

{10} On April 13, 2007, Worker and Witness submitted an amended claim with the WCA that was identical to their February 9, 2007, claim in all respects except that it added PPGC as a defendant. Shortly thereafter, counsel from the Pojoaque Legal Department submitted an "Entry of Special Appearance" requesting that "Employer" be dismissed from the proceedings.

{11} The motion to dismiss advanced three arguments. The first was based on tribal sovereign immunity. Defendants' remaining arguments included the following: Worker failed to exhaust his tribal remedies with respect to the revocation of his license, and Worker failed to state a claim upon which relief could be granted in that no cause of action existed for Worker to challenge PGI's submission of materials to PPGC relating to Worker's suitability to engage in Class III gaming activities.

{12} Defendants then submitted a separate motion to dismiss all claims relating to Witness. Defendants contended that because Section 52-1-28.1 penalizes employers for improper claims filed only by injured workers and Section 52-1-28.2 prohibits retaliatory discharge only against a worker seeking workers' compensation benefits, Witness was not entitled to relief under either provision. The WCJ granted the motion and dismissed the claims raised by Witness on June 18, 2007.

{13} On June 4, 2007, the WCJ issued a ruling regarding PGI, PPGC, and FISIF's motion to dismiss for lack of subject matter jurisdiction. The WCJ first noted that neither PGI, the Pueblo, nor FISIF had raised the issue of sovereign immunity prior to the filing of the first motion to dismiss in April 2007. The WCJ remarked that prior to the filing of that motion, PGI and FISIF had stipulated that "[j]urisdiction of the [WCA] is not contested." The WCJ also observed that neither PGI nor FISIF raised sovereign immunity in their answer to Worker's initial complaint. In light of these facts, the WCJ concluded that "jurisdiction does exist at least as against [PGI]." The WCJ then noted that PPGC was first added as a Defendant in the amended complaint, after Worker's original injury complaint had been adjudicated. Because PPGC had not explicitly waived sovereign immunity, the WCJ held that PPGC was entitled to raise that defense. Accordingly, the WCJ concluded that "the Motion to Dismiss for Lack of Subject Matter Jurisdiction is denied as regards [PGI] but is granted as regards [PPGC]."

{14} Defendants then submitted a motion requesting that the WCJ correct the caption in the case. Counsel for Defendants argued that throughout the proceedings the Worker's employer had wrongly been identified as Pojoaque Pueblo and Cities...