SC-CV-30-98
SUPREME COURT OF THE NAVAJO NATION
Lavenna George, Appellant,
v
Mary Tsosie
and The Navajo Nation, Appellees. OPINION
Before YAZZIE, designation),
Chief Associate
Justice, Justices.
AUSTIN
and
*L.
JOHNSON
(*by
special
Appeal 465-95,
of a decision the Honorable
by the Window Rock District Allen Sloan presiding.
Court,
No.
WR-CV-
Scott E. Borg, and Luke Macik, Opinion delivered
Esq., Esq.,
Albuquerque, New Mexico, for the Appellant Gallup, New Mexico for the Appellees. Justice.
"':-
by AUSTIN, Associate
on
The initially
issue filed
appeal
is
whether ~with
an
Nav,aj
injured
0
worker
administrative
who
her
claim
and later
the
Nation
should be required compensation
Compensation process to pursue her
Program,
withdrew district in
from court,
the
to sue in Navajo Nation remedy to
completion
the workers'
We hold
in the affirmative
I
On
January
by a Navajo
11,
1994, Nation
the
Appellant,
employee, driven
Lavenna
George
and a also street and the to The sending
("George"), injured Navajo between
a Navajo
government vehicle
was struck
Nation
by Mary Tsosie, the
Nation
government
employee. Citizen
George was crossing Center, her call work site, to her for
the Ganado Senior
Ganado Chapter relay center's
House to make a telephone that a co-worker:
I
supervisor work. for
a message employees
w:ould be late house's
used the chapte.r
telephone
forum. Workers' No.
not
Related
compelled
Neurological is
to
seek
a
jurisdictional
a civil
administrative
agency before ~njury
filing
from the ruling suit. Florida Birth668 So.2d at 977. in George's wrongdoing
Compensation Ass'no, of intentional her claim with
There
nq eviidence filed
case and she initially allege that which initially with the
the Program. misconduct
She did
of a coof
she was injured mifht d~strict have
by the willful given
her
the
option
filing
(1995) Because invoked invokes all
court.
See 15 N.N.C support
§ 1013
The Eldridge George's claim
and Humana cases is not
do not
an intentional A claimant
she properly who initially
the jurisdiction the jurisdiction remedies before
of ~he Program. of the that
Program should
be required
to exhaust
forum government employees are coverage
"presumed
Navajo
elected N.N.C. injured
§
Nation
to
have 15 is her the
to
take workers'
(A)
compensation" the course
when hired employee his claim, or
1003
(1995
during f~les a
when a Navajo
Nation of
accidentall~
and
and scope compensation
jurisdiction course Section and lOl3
when their scope of of
injuries
"arise
15
out
N.N.C.
of
§
and
[are]
in
the
employment
(1995
the Workers'
Compensation
Act states:
The right to receive compensation pursuant to the provisions of this chapter for injuries sustained by a covered member shall be the exclusive remedy against the Navajo Nation and employees thereof, except where the injury is caused by the fellow employee's willfulmisconduct... in which event, the injured employee may, at his or her option, either claim compensation or maintain an action at law fo~ damage against the fellow employee... before the Navajo Nation Courts.
5
lOO2(F) employment, workers' Thus, tort, George. employee,
Once the the employee's the
employee eligibility
files
a claim, for workers' the
the
Program must determine benefits.
compensation
If
can be
Program denies the Board
the claim, on Ithe issue
employee his
can request or her If
a hearing
before
of whether
(1)
claim
15 N.N.C.
§ 1010(G)
(1995
the Board upholds with this Court
denial,
15 N.N.C.
the
employee
may then
file
an appeal
§ lOll(B) started Program. its
(1995) .
George the
the process The Program decision on the a letter
by filing denied facts to her
her
claim
for
benefits 4, the a
claim
on February by George at
basing time. hearing information George before
offered the the
then the
sent Board
Program following
requesting additional House:
and offered
about
why she was walking
to the Ganado Chapter
[I]t was messages day, this worked at messages open with
part of my routine to check for at the Chapter [House] twice each was because the Center which I did not have a phone. I cheGk for to keep the lines of communication my agency office which is part of my
February 7,
duty...
George's Letter
.
dated
The part was not that
about
checking by the February of the
for
messages as part analyst during
of her
job duties review of its offered, her
considered led to the light
claims
4,
the initial
1994 denial. claim
Upon advice George decided of this on April that
counsel the claim
and in Program can
additional
George's
information and
reevaluated
that
be compensated. 22, 1994 and the
George was notified Board was notified It
new decision 25, the
on April
1994
Board
the date of
may have it That
the scheduled
George's that have ended
appears
granted should
to withdraw her request George had received the relief the case.
because she wanted.
6
was satisfied
"appeal" hearing). 1994. 1994, compensated.
However,
negligence
George then obtained
in! I the district
counsel
and decided
to pursue
a
claim
She created
suit of by alleging the accident. that
"material
Appellant's The record were no at the
issues personal
of fact" errand dated
to support a~i the
her time
she was on a
Complaint shows that disputed time of
December 12, time the as to fact -,
allegation
complaint George's over
No. 5.
up tQ the issues of
was filed, employment earlier, workers' for
there status the
fact
the accident. that there court we hold
a year for
Program
had determined Thus, in the district Accordingly, 1994 to
she was eligible
was no cause of action
compensation George to sue on
that
the Program's benefits
decision to
of April George from is
22, the a
award workers'
compensation
filing
The district court shall The George This from there proceedings case is remanded to the Nation Window Rock District Compensation Court, Program, and for to the Navajo consistent Workers' opinion
2001.
void
its
summary judgment
and dismiss
the to
case before compensate
Program
shall
carry
out
its
decision
with
Filed
this
15th daY,1
J
7
this
arChl
,A \1>'
Chief
of
'Navajo
Nation
Associ-ate
Assoc
7
it. benefits. In 1995, court.