Martinez v. Pojoaque Gaming Inc.

DAVID MARTINEZ, Worker-Appellant,

v. POJOAQUE GAMING, INC., d/b/aCITIES OF GOLD CASINO,POJOAQUE PUEBLO, andFOOD INDUSTRIES SELF-INSURANCE FUND, Employer/Insurer-Appellees.

Docket No. 29,975

COURT OF APPEALS OF THE STATE OF NEW MEXICO

Filing Date: June 10, 2011

Opinion Number: ________________

APPEAL FROM THE WORKERS' COMPENSATION ADMINISTRATION Gregory Griego, Judge

Annie Laurie Coogan

Santa Fe, NM

for Appellant

Pueblo of Pojoaque Legal Department

Frank A. Demolli

Rosemary Maestas Swazo

Santa Fe, NM

for Appellees

OPINION

VANZI, Judge.

{1} This is the second time this case has come before us for review. See Martinez v. Cities of Gold Casino (Martinez I), 2009-NMCA-087, 146 N.M. 735, 215 P.3d 44, cert. denied, 2009-NMCERT-007, 147 N.M. 361, 223 P.3d 358. In the first appeal, we held that the Workers' Compensation Judge (WCJ) had the authority to order employer, Cities of GoldCasino (the Casino), to rehire employee, David Martinez (Worker), after the Casino fired Worker in retaliation for filing a workers' compensation claim. Id. ¶ 37. We affirmed the WCJ on the adequacy of the remedies available under the bad faith and retaliatory discharge provisions of the Worker's Compensation Act (Act) and on the constitutionality of the cap on attorney fees set forth in NMSA 1978, Section 52-1-54(1) (2003). Martinez I, 2009-NMCA-087, ¶¶ 34-36. Worker now appeals from the WCJ's decision that Worker could not be rehired by the Casino. Worker also asks this Court to award pre- and post-judgment interest on the bad faith awards and fees previously ordered by the WCJ and to allow the payment of attorney fees when an employer has acted in bad faith.

BACKGROUND

{2} We briefly review the parties and the facts that gave rise to the original controversy, which are set forth in detail in Martinez I. The Casino is a commercial business enterprise that is owned and operated by Pojoaque Gaming, Inc. (PGI). PGI is an independent corporation owned by Pojoaque Pueblo (Pueblo), a federally recognized Indian tribal government. Another independent tribal entity, the Pueblo of Pojoaque Gaming Commission (PPGC), is responsible for issuing gaming licenses that certain employees are required to possess pursuant to the gaming compact between the tribe and the State of New Mexico. Art Garcia, a high-level supervisor above Worker, is an employee of both PGI and PPGC. Finally, 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.

{3} In February 2006, Worker filed a claim with the Workers' Compensation Administration (WCA) against PGI alleging that he was injured while working as a manager at the Casino. The parties were unable to successfully mediate the claim and, as a result, the case went to trial before the WCJ. Art Garcia was present at the trial and testified against Worker. On November 21, 2006, the WCJ filed a memorandum opinion finding for Worker and stating that Worker was entitled to medical and compensation benefits.

{4} Eight days after the WCJ's opinion was entered, the PPGC suspended Worker's license, and Worker was banned from the Casino premises until further notice. On January 25, 2007, Worker's license was permanently revoked by PPGC resulting in the termination of his employment at the Casino.

{5} After his termination, Worker filed a complaint with the WCA against PGI, the Pueblo, PPGC, and FISIF alleging bad faith, unfair claims processing, and retaliation as a direct result of the initial complaint he had filed with the WCA. Worker's claims were brought pursuant to NMSA 1978, Sections 52-1-28.1 (1990) and 52-1-28.2 (1990), which prohibit unfair and bad faith claim-processing practices and retaliation against employees seeking benefits. Defendants filed motions to dismiss for lack of subject matter jurisdiction, and the WCJ concluded that PPGC was never Worker's employer and that it was immune from suit pursuant to its status as a tribal entity possessing sovereign immunity. Worker's complaint against PPGC was dismissed. However, the WCJ held that PGI had waived its sovereign immunity, and Worker's complaint against PGI could proceed.

{6} On April 1, 2008, the WCJ issued a compensation order on the bad faith, unfair claims processing, and retaliation claims brought by Worker. The WCJ found that the revocation notice relied on non-existent evidence to support the decision to revoke Worker's gaming license. The WCJ further noted that Art Garcia, an employee of both PGI and PPGC who had testified at Worker's earlier compensation claim trial, had provided inaccurate or incomplete information to the PPGC. "By inference of timing," the WCJ stated, the information provided by Art Garcia was "intended to retaliate against Worker for his successful claim for workers' compensation." Accordingly, the actions of PGI constituted bad faith under Section 52-1-28.1(B). The WCJ awarded Worker a twenty-five percent increase in his initial compensation award for PGI's violation of this provision of the Act. In addition, the WCJ found that the actions of PGI were "intended to result in license revocation for Worker, with the intent of terminating Worker's employment with [PGI]." Thus, the WCJ concluded that PGI's actions constituted retaliation against Worker for seeking workers' compensation benefits in violation of Section 52-1-28.2. The WCJ imposed a $2500 penalty against PGI, payable to the WCA pursuant to the remedy provisions contained in Section 52-1-28.2(C) and (D). Although Section 52-1-28.2(B) requires employers who retaliate against employees for seeking workers' compensation benefits to rehire, the WCJ concluded that it had no authority to do so because it could not require PPGC to license Worker.

{7} In the first appeal, Worker challenged the WCJ's decision that it could not order PGI to rehire Worker as well as the adequacy of the remedies and cost-sharing provisions established in Sections 52-1-28.1, 52-1-28.2, and Section 52-1-54(I) of the Act. On the issue of the rehire provision, we stated in Martinez I that "[g]iven the mandatory language of Section 52-1-28.2(B), the seriousness of the public policy at issue, and the conclusiveness of the finding by the WCJ that Worker's employment was terminated as a consequence of his filing a claim with the WCA, this Court concludes that PGI must rehire Worker." Martinez I, 2009-NMCA-087, ¶ 31. We rejected Worker's assertion that we should interpret Section 52-1-28.2 to include remedies beyond those expressly provided in the Act and his contention that the cap on attorney fees in Section 52-1-54(I) is unconstitutional. Martinez I, 2009-NMCA-087, ¶¶ 33-36.

{8} Our Supreme Court denied Worker's petition for writ of certiorari,Martinez v. Cities of Gold, 2009-NMCERT-007, and on August 18, 2009, this Court issued a mandate remanding the case to the WCJ for further proceedings consistent with the Martinez I opinion.

{9} After the mandate issued, Worker filed a motion to compel payment records and to enforce the compensation order and Court of Appeals mandate. Worker requested that he be rehired in a job of equal pay or status or for front and back pay in an amount to be determined. Worker also requested that the WCJ award pre- and post-judgment interest on all amounts due. PGI filed a response, arguing that any award for pre- and post-judgment interest should be denied. PGI also argued that with regard to Worker's request for reinstatement, "[t]here remain issues of material fact to be determined which may necessitate that [PGI] present additional evidence to the [c]ourt."

{10} The WCJ held a hearing on October 5, 2009, during which PGI's human resources director testified and presented evidence that there were no jobs within PGI that did not require a gaming license and that gaming licenses must be issued by the PPGC. Because Worker did not have a license, he would not be rehired. The WCJ filed a memorandum opinion on October 16, 2009, ruling that the twenty-five percent bad faith penalty provision due to Worker was $1,702.78. In addition, the WCJ concluded that "[n]otwithstanding the direction from the Court of Appeals the [WCA] is without authority to require [PPGC] to license Worker in order that he may be reemployed by PGI." The opinion was silent on Worker's request for pre- and post-judgment interest.

{11} In this second appeal, Worker asserts that bad faith damages under the Act are inadequate when a worker is terminated and cannot be rehired. Worker further contends that pre- and post-judgment interest should be awarded on all damages awarded, and the attorney fees provisions in the Act are either unconstitutional or ambiguous. We address each argument in turn.

DISCUSSION

The Adequacy of Bad Faith Damages Under the Act

{12} On remand, the WCJ again concluded that he could not require PGI to rehire Worker. In light of that ruling, Worker does not argue that because the WCJ failed to follow our mandate, its decision is erroneous as a matter of law. Instead, Worker contends that because he "[cannot] and will not be rehired by [PGI,]" we should look for other remedies to compensate him. He asks this Court to provide compensation benefits for the statutory period of 500 weeks in lieu of his rehire. Worker asks us to be guided by fundamental fairness and argues that Section 52-1-28.2 can be interpreted to include other remedies when the employer cannot rehire a worker fired in retaliation for seeking medical and compensation benefits. We disagree, and Worker gives us no authority for this proposition. See In re Adoption of Doe, 100 N.M. 764, 765, 676 P.2d 1329, 1330 (1984) (noting that where a party cites no authority to support an argument, we may assume no such authority exists).

{13} PGI, on the other hand, continues to argue—as it did in Martinez I—that PPGC has full authority to revoke Worker's license; Worker was provided an appeal process to seek...