Pueblo Wants Workers Claim Blocked

By David Collins

Sep. 26, 2007 The Santa Fe New Mexican


The Pueblo of Pojoaque is asking a District Court judge to block a fired casino worker's claim that the pueblo should pay damages for retaliation. An attorney for the pueblo said the state administrative judge who oversees workers' compensation claims doesn't have the authority to levy damages against the pueblo for alleged retaliation.

Whatever a District Court decides in a October hearing, the question might not be settled in that court.

"We are going to appeal that ... because it is such a big issue," said Pueblo attorney Frank Demolli, who has previously advanced tribal-sovereignty cases through appeals.

David Martinez was fired from his job as a casino floor manager in January after the Pueblo of Pojoaque Gaming Commission notified him his Pueblo gaming license had been revoked.

According to a letter to Martinez notifying him of the revocation, the commission found "a pattern of false and misleading statements" from Martinez.

The misleading statements related to an earlier claim involving a work-related foot injury for which Martinez was awarded $4,427 in November. Martinez reopened that claim with the state Workers' Compensation Administration after he was fired, alleging retaliation.

The pueblo doesn't dispute the outcome of Martinez's original workers' compensation claim. The pueblo agreed in gaming compacts with the state to insure casino workers against injury.

Such insurance is to include " benefits at least as favorable as those provided by comparable state programs," according to the 2001 agreement.

On average, 20 workers' compensation claims are filed each year against Pueblo enterprises, and Pojoaque Pueblo has never claimed sovereign immunity, its attorneys wrote in a legal brief.

The pueblo buys insurance through the Food Industry Self Insurance Fund of New Mexico, a self-insurance program available to members of restaurant- and grocery-industry associations. The pueblo doesn't generally dispute theauthority of state workers' compensation judges to arbitrate personal-injury claims of employees against Pueblo enterprises insured through that fund.

Annie-Laurie Coogan, an attorney representing Martinez, said protections against retaliation are part of the benefits workers enjoy when they are covered by state-approved insurance programs such as the self-insurance fund. Under the state workers' compensation law, workers who believe they are victims of retaliation can return to the workers' compensation judge and ask for a damage judgment.

The pueblo said it only agreed to allow state jurisdiction in Martinez's workers' compensation hearing for the purposes of awarding compensation for his injuries. An attorney's signature consenting to state jurisdiction in the case of Martinez's foot injury did not sign awaythe pueblo's sovereignty in other matters, the pueblo argues in its brief.

In court documents, the pueblo said lawsuits can only be brought against the pueblo in tribal court, unless the pueblo decides otherwise.

Demolli, who is also a judge in the Pueblo of Pojoaque court, has previously said Pueblo courts can hear disputes involving tribal businesses. Which matters are appropriate for Pueblo courts would depend on the particular circumstances of the dispute, he said.

Demolli declined to comment on the ongoing case involving Martinez and the Workers' Compensation Administration. The hearing is set for a December hearing before a state Workers' Compensation Administration judge. That administrative judge in August ruled that while the Pojoaque Gaming Commission enjoys sovereign immunity against lawsuits, the Cities of Gold Casino is subject to the state workers' compensation law.

District Judge James Hall on Thursday declined to stop the December hearing while he hears arguments on the scope of the workers' compensation judge's authority, but he said he will rule in early October on the scope of the Workers' Compensation Administration's authority to levy a damage judgment against the pueblo.bio/clips/092607SFNM