Mendoza v. Isleta Resort

419 P.3d 1256

Gloria MENDOZA, Worker-Appellant,

v. ISLETA RESORT and Casino and Hudson Insurance, Employer/Insurer-Appellees,andTribal First, Appellee,andState of New Mexico Uninsured Employers' Fund, Statutory Third Party.

NO. A-1-CA-35520

Court of Appeals of New Mexico.

Filing Date: April 9, 2018

Certiorari Granted, May 25, 2018, No. S-1-SC-37034

LeeAnn Ortiz, Albuquerque, NM, for Appellant.

Barnhouse Keegan Solimon & West LLP, Christina S. West, Los Ranchos de Albuquerque, NM, for Appellees.

VIGIL, Judge.

{1} Gloria Mendoza (Worker), an employee at Isleta Pueblo Resort and Casino (Isleta Casino), appeals orders of the Workers' Compensation Judge (WCJ) dismissing her workers' compensation complaint and denying her motion to reconsider a prior order to name the proper parties to the case. Worker contends that the WCJ erred in dismissing her complaint on grounds of tribal sovereign immunity based on an express and unequivocal waiver contained in the 2015 Indian Gaming Compact; that even assuming Isleta Casino enjoys sovereign immunity in this case, the defense does not extend to Isleta Casino's non-tribal entity insurer and third-party administrator; and that the WCJ erred in denying Worker's motion to reconsider its order granting leave to file a second amended workers' compensation complaint naming Isleta Casino's insurer and third-party administrator as parties to the case. For the reasons that follow, we reverse and remand for further proceedings.

BACKGROUND

A. The New Mexico Indian Gaming Compacts and Workers' Compensation

{2} In 1988, the United States Congress enacted the Indian Gaming Regulatory Act (IGRA), Pub. L. No. 100-497, 102 Stat. 2467 (1988) (codified at 25 U.S.C. §§ 2701 - 2721 (2012) ), which provides a statutory basis for Indian tribes to establish gaming enterprises in Indian Country conducted pursuant to state-tribal compacts. See 25 U.S.C. § 2702 ; 25 U.S.C. § 2710(d)(1), invalidated in part by Seminole Tribe of Fla. v. Florida , 517 U.S. 44, 47, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996).

{3} In 1995 and pursuant to IGRA, the Governor of the State of New Mexico, Gary Johnson, unilaterally entered into state-tribal gaming compacts with certain tribes. See State ex rel. Clark v. Johnson , 1995-NMSC-048, ¶ 8, 120 N.M. 562, 904 P.2d 11. Concluding that it violated separation of powers under the New Mexico Constitution for Governor Johnson to enter into the state-tribal gaming compacts without legislative approval, our Supreme Court held in Johnson that the 1995 Indian Gaming Compacts were without legal effect. Id. ¶¶ 46-50.

{4} Based on the decision in Johnson , Chapter 190, Section 1 of New Mexico laws of 1997 established the first legally effective state-tribal gaming compact in New Mexico. Section 4(B)(6) of the 1997 Indian Gaming Compact addressed workers' compensation for tribal gaming enterprise employees by stating that:

[T]he Tribe shall adopt laws ... providing to all employees of a gaming establishment employment benefits, including, at a minimum, sick leave, life insurance, paid annual leave and medical and dental insurance as well as providing unemployment insurance and workers' compensation insurance through participation in programs offering benefits at least as favorable as those provided by comparable state programs[.]

{5} In 2001 a new and revised Indian Gaming Compact was adopted. S.J. Res. 37, 45th Leg., 1st Sess. (N.M. 2001). The 2001 Indian Gaming Compact included a version of Section 4(B)(6), which was identical to the 1997 Compact.

{6} The Indian Gaming Compact was revised again in 2007. S.J. Res. 21, 48th Leg., 1st Sess. (N.M. 2007). Under the 2007 Indian Gaming Compact, Section 4(B)(6) was modified to add additional basic rights that tribal gaming enterprise employees must be afforded in the context of workers' compensation and how signatory tribes may elect to participate in the State of New Mexico's workers' compensation program. Section 4(B)(6) of the 2007 Indian Gaming Compact provided that:

[T]he Tribe shall adopt laws ... providing to all employees of a gaming establishment employment benefits, including, at a minimum, sick leave, life insurance, paid annual leave and medical and dental insurance as well as providing unemployment insurance and workers' compensation insurance through participation in programs offering benefits at least as favorable as those provided by comparable state programs, and which programs shall afford the employees due process of law and shall include an effective means for an employee to appeal an adverse determination by the insurer to an impartial forum, such as (but not limited to) the Tribe's tribal court, which appeal shall be decided in a timely manner and in an administrative or judicial proceeding and as to which no defense of tribal sovereign immunity would be available; and provided that to fulfill this requirement the Tribe may elect to participate in the State's program upon execution of an appropriate agreement with the State [.]

(Emphasis added.)

{7} In 2015 the current version of the Indian Gaming Compact was adopted. S.J. Res. 19, 52nd Leg., 1st Sess. (N.M. 2015). With revisions emphasized below, the 2015 Indian Gaming Compact re-adopted in its entirety the 2007 amendment to Section 4(B)(6). Section 4(B)(6) of the 2015 Indian Gaming Compact provides:

[T]he Tribe shall adopt laws ... requiring the Tribe, through its Gaming Enterprise or through a third-party entity, to provide to all employees of the Gaming Enterprise employment benefits, including, at a minimum, sick leave, life insurance, paid annual leave or paid time off and medical and dental insurance as well as providing unemployment insurance and workers' compensation insurance through participation in programs offering benefits at least as favorable as those provided by comparable State programs, and which programs shall afford the employees due process of law and shall include an effective means for an employee to appeal an adverse determination by the insurer to an impartial forum, such as (but not limited to) the Tribe's Tribal Court, which appeal shall be decided in a timely manner and in an administrative or judicial proceeding and as to which no defense of tribal sovereign immunity would be available; and provided that to fulfill this requirement the Tribe may elect to participate in the State's program upon execution of an appropriate agreement with the State[.]

(Emphases added.) The Pueblo of Isleta has been a signatory to the 2015 Indian Gaming Compact since July 28, 2015. See Indian Gaming, 80 Fed. Reg. 44,992 -01 (July 28, 2015).

B. Parties in Interest

{8} Worker, the injured worker and complainant seeking work injury benefits from her employer in this case, is employed by and works as a custodial porter for Isleta Casino. Isleta Casino is a Class III tribal gaming enterprise located in the State of New Mexico that is wholly owned and operated by the Pueblo of Isleta. At the time of Worker's work injury, Isleta Casino maintained workers' compensation insurance issued by Hudson Insurance Company (Hudson), a Delaware corporation. Tribal First, which functioned as the third-party administrator of Isleta Casino's workers' compensation insurance policy at the time of Worker's injury, is a program administered by the California corporation, Alliant Specialty Insurance Services, Inc. Finally, First Nations Compensation Plan, was a company that provided Indian tribes with workers' compensation coverage until 2009. In 2009, First Nations Compensation Plan ceased paying claims after being pulled into bankruptcy proceedings involving a related company whose principals were investigated for operating a "Ponzi scheme" and were convicted on charges of mail fraud.

C. Worker's Work Injury and Claim for Work Injury Benefits

{9} On August 24, 2015, Worker was injured at work while pushing chairs during her midnight shift at Isleta Casino. Worker suffered a torn meniscus in her right knee. Worker filed a notice of accident form with Isleta Casino, was sent to an urgent care clinic by Isleta Casino, and saw a doctor all within twenty-four hours of her accident.

{10} On September 11, 2015, Worker received a letter signed by Erica Brown, an insurance adjuster for Tribal First (the Tribal First adjuster), which stated that Tribal First would be handling her claim for work injury benefits on behalf of Isleta Casino. The letter continued that "[p]er Isleta Resort & Casino work injury program, claims are to be reported within 24 hours." The letter incorrectly asserted, "Since you did not report your claim timely per Isleta Resort & Casino['s] work injury program, your claim is denied." The letter concluded that if Worker disagreed with Tribal First's decision, she was required to submit a written request for appeal with Tribal First no later than thirty days after the date of the letter denying her work injury benefits.

{11} Worker responded by filing a workers' compensation complaint with the Workers' Compensation Administration (WCA), naming Isleta Casino and the Food Industry Self Insurance Fund of New Mexico (FISIF) as parties to the case. Worker then amended her complaint to add as parties Tribal First and the Uninsured Employers Fund of New Mexico (UEF). While the case was pending, a certificate of workers' compensation insurance was filed with the WCA, identifying Hudson as the workers' compensation liability insurance carrier for Isleta Casino at the time of Worker's accident.

{12} A mediation conference was then held, but the parties were not able to resolve the matter. Included in the mediator's observations and recommendations were that the WCA had jurisdiction to adjudicate Worker's case because Isleta Pueblo waived tribal sovereign immunity, pursuant to Section 4(B)(6) of the 2015 Indian Gaming Compact, and that "[t]he behavior of the Tribal First adjuster raises a question of whether there is an enterprise to take tribes' money but pay no claims. ... Such a course of behavior, even if...