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Certiorari Denied, September 16, 2011, No. 33,113; Certiorari Denied, September

20, 2011, No. 33,108

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2011-NMCA-103

Filing Date: June 10, 2011

Docket No. 29,975

DAVID MARTINEZ,

Worker-Appellant,

v.

POJOAQUE GAMING, INC., d/b/a

CITIES OF GOLD CASINO,

POJOAQUE PUEBLO, and 

FOOD INDUSTRIES SELF-INSURANCE FUND,

Employer/Insurer-Appellees.

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.
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{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 Gold

Casino (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(I) (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,
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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
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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

reinstatement of his gaming license, which he did not do; and PPGC is not subject to the

jurisdiction of the WCA. PGI claims that it cannot rehire Worker because he does not have

a license to do his old job. Apparently undeterred by the WCJ’s findings that the actions of

PGI in terminating Worker constituted bad faith, PGI continues to disparage Worker and

says that “Worker should learn that, when working for a tribal entity, [he is] possibly subject

to federal, state and tribal law and that these laws are not necessarily in harmony.” Further,
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in response to Worker’s contention that he has been unemployed since his termination, PGI

states that Worker’s assertion “shows a complete ignorance of federal and tribal law” and

that “[b]oth Worker and his attorney should learn that they must exhaust their tribal remedies

before bringing their complaints to another forum.” PGI apparently still refuses to

acknowledge its role in Worker’s termination. In particular, PGI continues to ignore the

WCJ’s findings that Worker’s gaming license was revoked because of the actions of PGI and

that the person who “provided inaccurate or incomplete information to the [PPGC]” resulting

in Worker’s license revocation is the same person who is also “an employee and agent of

[PGI] and [PPGC].” In any event, these issues have already been decided in Martinez I, and

we do not revisit them here. 

{14} As we have noted, PGI argues that the bad faith damages—essentially the award of

no damages in this case—are adequate and that it simply cannot rehire Worker. Worker

cites to cases in which courts in other jurisdictions have fashioned alternative remedies, such

as back pay and front pay, when the reinstatement of a terminated employee is not feasible.

However, those cases were decided in the context of a range of available remedies to make

the injured worker whole and are therefore not helpful to this decision. See, e.g., Whittington

v. Nordam Group Inc., 429 F.3d 986, 1000 (10th Cir. 2005) (holding that front pay is an

equitable remedy in age discrimination case); Mechling v. K-Mart Corp., 574 N.E.2d 557,

559 (Ohio Ct. App. 1989) (holding that an employee who had been discharged for filing a

workers’ compensation claim was entitled to reinstatement of benefits, even though that

remedy was not specifically mentioned in the statute). Accordingly, we must rely on the

language of the Act to determine its meaning. 

{15} We recognize that some state statutes provide that employers must rehire but that

when an employer refuses to do so, it must pay the employee lost wages. See, e.g., Wis. Stat.

Ann. § 102.35(3) (West 2005). The Act, however, is unequivocal in its language. It is short,

unambiguous, and to the point. We repeat Section 52-1-28.2(B)’s requirement that “[a]ny

person who discharges a worker in violation of Subsection A of this section shall rehire that

worker pursuant to the provisions of the . . . Act . . . provided the worker agrees to be

rehired.” (Emphasis added.) This statutory provision does not recognize that an employer

might have legitimate business reasons for not rehiring the employee nor does it allow

consideration of any other remedies as a substitution for rehire. More importantly, nothing

in Section 52-1-28.2(B) allows an employer who has acted in bad faith and with “willful,

wanton or reckless disregard” of a worker’s rights to escape with no sanction as the WCJ

decided in this instance. See § 52-1-54(I).

{16} As we explained in Martinez I, “by enacting Section 52-1-28.2(B), the Legislature

expressly set out the clear mandate that the act of retaliatory discharge is a clear violation

of public policy.” Martinez I, 2009-NMCA-087, ¶ 30 (alteration omitted) (internal quotation

marks and citation omitted). The overall purpose of the Act would be seriously undermined

if employers could be relieved of the responsibility expressly placed upon them by the Act

by openly discharging workers for exercising their statutory rights. Further, exempting an

employer from the mandatory rehiring requirements of the statute permits it to defeat the

Legislature’s intent with regard to compensating a worker who has been retaliated against.

To allow such a result would open the door for virtually every employer to circumvent the
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statutory mandate by arguing that it had a valid justification as to why it could not rehire a

terminated worker. Finally, we observe that such an exemption could readily discourage

employees from exercising their rights under the Act. 

{17} In this case, our mandate and opinion in the prior appeal limited the WCJ to issuing

an order requiring PGI to rehire Worker. “It is well settled that the duty of a lower court on

remand is to comply with the mandate of the appellate court, and to obey the directions

therein without variation[.]” Vinton Eppsco Inc. of Albuquerque v. Showe Homes, Inc., 97

N.M. 225, 226, 638 P.2d 1070, 1071 (1981) (emphasis omitted). Where there is a question

as to whether a lower court followed this Court’s mandate on remand, “[i]t is within the

power, and it is the duty, of this [C]ourt to construe its own mandate in case there is any

ambiguity in the same.” State ex rel. Bujac v. Dist. Ct. of Second Judicial Dist., 28 N.M. 28,

32, 205 P. 716, 718 (1922). We review the question of whether the WCJ has followed its

authority on remand de novo, as it involves a question of law. See Garcia v. Garcia, 2010-

NMCA-014, ¶ 27, 147 N.M. 652, 227 P.3d 621, cert. quashed, 2010-NMCERT-007, 148

N.M. 611, 241 P.3d 612.

{18} In Martinez I, this Court reversed in part the WCJ and remanded with the instruction

that PGI must rehire Worker in accordance with the mandatory provision of Section 52-1-

28.2(B). Martinez I, 2009-NMCA-087, ¶ 37. We did not mandate that the WCJ make

findings related to whether PGI could or would rehire Worker, or whether alternative

remedies existed. Rather, we mandated that the WCJ order PGI to rehire Worker, which the

WCJ did not do. Instead, at PGI’s request, the WCJ held a hearing and then concluded that

“[n]othwistanding 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.” By virtue

of the WCJ’s failure to follow our mandate, its decision is erroneous as a matter of law. We

remand again with instructions to the WCJ to order PGI to rehire Worker. 

Pre- and Post-Judgment Interest

{19} Worker argues that he is entitled to pre- and post-judgment interest on previously

awarded damages and attorney fees. Specifically, Worker contends that he is entitled to such

interest because the judgments in this case for the bad faith damages to Worker and bad faith

award of attorney fees were entered in April and June 2008 and were not paid until

September and December 2009. We turn first to the issue of pre-judgment interest and then

address Worker’s request for post-judgment interest.

{20} Whether to award pre-judgment interest pursuant to NMSA 1978, Section 56-8-4

(2004) is a decision left to the sound discretion of the WCJ, and we will reverse only for an

abuse of that discretion. See Gonzales v. Surgidev Corp., 120 N.M. 133, 150, 899 P.2d 576,

593 (1995). Section 56-8-4(B) provides:

[T]he court in its discretion may allow interest of up to ten percent from the

date the complaint is served upon the defendant after considering, among

other things:
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(1) if the plaintiff was the cause of unreasonable delay in the

adjudication of the plaintiff’s claims; and

(2) if the defendant had previously made a reasonable and timely

offer of settlement to the plaintiff.

{21} The WCJ did not address or make any specific factual findings regarding Worker’s

request for pre-judgment interest in his memorandum opinion or compensation order. We

assume therefore—and the parties do not disagree—that Worker’s motion was denied. Our

Supreme Court has stated that a court’s reasons for denying pre-judgment interest need not

be in writing but need only be ascertainable from the record and not contrary to logic and

reason. Gonzales, 120 N.M. at 150, 899 P.2d at 593. 

{22} Worker here does not contend that the WCJ abused his discretion in failing to grant

Worker pre-judgment interest. Rather, he argues only that there was “ample evidence” to

support such an award based on the bad faith actions of PGI. We observe that Section 56-8-

4(B) is a discretionary statute designed to encourage settlement and discourage delay. In this

case, Worker does not argue that PGI caused any unreasonable delay in the proceedings or

that it made an unreasonable settlement offer prior to trial. He argues only that “there was

substantial cause to believe from the initial filing of the [a]pplication by . . . Worker and his

witness that bad faith and wrongful termination had been committed.” Under the

circumstances, we cannot say that the WCJ’s ruling denying Worker’s request for prejudgment interest was contrary to logic and reason. 

{23} Worker next contends that he is entitled to post-judgment interest at a rate of fifteen

percent. Section 56-8-4(A) states the following:

Interest shall be allowed on judgments and decrees for the payment of money

from entry and shall be calculated at the rate of eight and three-fourths

percent per year, unless:

(1) the judgment is rendered on a written instrument having a

different rate of interest, in which case interest shall be computed at a rate no

higher than specified in the instrument; or 

(2) the judgment is based on tortious conduct, bad faith or

intentional or willful acts, in which case interest shall be computed at the rate

of fifteen percent.

{24} PGI seems to argue that because it was not responsible for any delay in enforcing the

WCJ’s original compensation order, the WCJ properly denied Worker’s request for postjudgment interest. However, unlike a discretionary award of pre-judgment interest under

Section 56-8-4(B), “an award of post-judgment interest under Section 56-8-4(A) is

mandatory.” Nava v. City of Santa Fe, 2004-NMSC-039, ¶ 22, 136 N.M. 647, 103 P.3d 571.

Further, this Court has noted that “[w]hen a judgment is based on tortious conduct, bad faith,

or a finding that the defendant acted intentionally or willfully, a court must award interest

at the higher rate of [fifteen] percent.” Pub. Serv. Co. of N.M. v. Diamond D Constr. Co.,

2001-NMCA-082, ¶ 55, 131 N.M. 100, 33 P.3d 651 (emphasis added). Here, the WCJ

specifically found that PGI intended to retaliate against Worker for his successful workers’
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compensation claim, that the actions of PGI constituted bad faith, and that PGI’s actions

amounted to “fraud, malice, oppression or willful, wanton or reckless disregard of the rights

of [Worker].” As a result, post-judgment interest for Worker’s successful bad faith claim

should have been awarded and computed at the proper rate of fifteen percent. We reverse

the WCJ’s denial of post-judgment interest to Worker.

Attorney Fees Provisions Under the Act

{25} In this second appeal, Worker again argues that the cap on attorney fees under the

Act is unconstitutional and urges us to “depart from the plain meaning of the statute because

not to do so results in an absurdity.” Worker’s arguments were previously raised and

addressed in Martinez I. In that opinion, we cited to Wagner v. AGW Consultants, 2005-

NMSC-016, ¶ 3, 137 N.M. 734, 114 P.3d 1050, in which our Supreme Court held that the

fee limitations in Section 52-1-54(I) are constitutional. Martinez I, 2009-NMCA-087, ¶ 36.

Accordingly, we said, “[w]e have no authority to do as Worker requests.” Id. As we have

previously decided this issue in Martinez I, we do not reach this question again today.

CONCLUSION

{26} Pursuant to Section 52-1-28.2(B), we reverse the WCJ and remand with instructions

to order PGI to rehire Worker. We affirm the WCJ’s denial of pre-judgment interest, but we

reverse on the issue of post-judgment interest as set forth above. Finally, we affirm on the

issue of attorney fees. 

{27} IT IS SO ORDERED.

______________________________________

LINDA M. VANZI, Judge

WE CONCUR:

______________________________________

JAMES J. WECHSLER, Judge

______________________________________

MICHAEL E. VIGIL, Judge

Topic Index for Martinez v. Pojoaque Gaming, Inc., No. 29,975

AE APPEAL AND ERROR

AE-RM Remand

AE-SR Standard of Review

EL EMPLOYMENT LAW

EL-TE Termination of Employment
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GV GOVERNMENT 

GV-SI Sovereign Immunity

IL INDIAN LAW

IL-GA Gaming

IL-TJ Tribal and State Authority and Jurisdiction

JM JUDGMENT

JM-IN Interest

JM-PJ Post Judgment Relief

JM-PI Pre-Judgment Interest

RE REMEDIES

RE-PJ Prejudgment Interest

WC WORKERS COMPENSATION

WC-AF Attorney Fees

WC-BF Bad Faith

WC-RI Rehire

WC-RT Retaliation

WC-WG Workers’ Compensation, General

ST STATUTES

ST-IP Interpretation