New article: Illegal immigrants frequently denied compensation

A very well documented story was run on 9/15, by Liz Chandler of McClatchy Newspapers. about problems with access to workers comp protections for immigrant workers — in particular illegal workers. This is the best national scope journalistic report to date on this problem, which I have often addressed. she writes:

In one national study, university researchers surveyed 2,660 day laborers, most of them working illegally. One in five said he’d suffered a work injury. Among those who were hurt in the last year, 54 percent said they didn’t receive the medical care they needed, and only 6 percent got workers’ comp benefits. Employers in at least 20 states, arguing that their employees shouldn’t receive injury benefits because they’re illegal immigrants, have fought and lost in courts and review boards. Among those employees were a California laborer who hurt his back lifting sacks of coffee, an Arizona auto mechanic who was hit in the eye by flying debris, a Maryland carpenter who cut his hand on a saw, and a North Carolina construction worker who suffered a brain injury when he fell 30 feet onto a concrete floor.

the article:


CORAL SPRINGS, Fla. – Jose Hernandez was good with a machete. So he was the top choice when his boss needed someone to chop down young trees that were choking parts of Florida’s Everglades.
On one trip to the swamps, the workers flew in by helicopter and quickly cut a stand of sprouting trees. But when they took off again, something went wrong: The chopper lurched left, then plunged into murky water.
A broken rotor blade slashed through Hernandez’s left thigh.
Doctors saved his life, but couldn’t save his leg.
To pay for his costly medical care, Hernandez filed a workers’ compensation claim, which covered some of his bills.
Then, the insurance carrier, Florida Citrus, Business & Industries Fund, discovered that Hernandez was in America illegally, without work papers or permission from federal immigration officials. It halted all payments and left Hernandez to languish in a low-income Florida nursing home, unable to work to support his wife and four children in Mexico.
Thousands of illegal workers like Hernandez are hurt on the job every year in America, but don’t get the compensation that’s promised by law in every state.
Bosses often fire them, threaten them with deportation and commit an array of other misdeeds to avoid responsibility for workers’ injuries. Some insurers refuse to pay their claims, citing reasons related to their illegal status.
As a result, injured workers often go without medical care or go to emergency rooms for treatment – and taxpayers get stuck with the bills.
“It’s a violation of the American spirit,” said Florida lawyer Gerry Rosenthal, who represents Hernandez. “Employers are hiring these people and pushing them hard to make a profit for the company, but when a worker gets hurt, they abandon him.”
From field hands to garment workers to poultry processors to construction crews, injuries abound in industries that rely on an estimated 7 million undocumented workers, often to do dirty and dangerous jobs. Yet those who are undocumented are frequently cheated out of benefits that American workers have taken for granted for nearly a century, a McClatchy Newspapers investigation has found.
Federal labor officials haven’t studied whether undocumented workers are wrongfully being denied compensation. But the exploitation is rampant, according to interviews with scores of illegal workers, employers, workers’ comp lawyers, health care providers and workplace experts, and a review of lawsuits and workers’ comp claims.
In one national study, university researchers surveyed 2,660 day laborers, most of them working illegally. One in five said he’d suffered a work injury. Among those who were hurt in the last year, 54 percent said they didn’t receive the medical care they needed, and only 6 percent got workers’ comp benefits.
Employers in at least 20 states, arguing that their employees shouldn’t receive injury benefits because they’re illegal immigrants, have fought and lost in courts and review boards. Among those employees were a California laborer who hurt his back lifting sacks of coffee, an Arizona auto mechanic who was hit in the eye by flying debris, a Maryland carpenter who cut his hand on a saw, and a North Carolina construction worker who suffered a brain injury when he fell 30 feet onto a concrete floor.
Juan Palacios, a 27-year-old husband and father from Guatemala, was working on the roof of a Florida home in March when a coworker accidentally splashed hot tar on him. Palacios fell 12 feet and smashed through a glass table and onto a tile floor. He was hospitalized for a week.
During that time, he heard nothing from his boss at Sunrise Roofing.
“They don’t care about me,” Palacios said. “I feel bad because I can’t work. … That’s why I’m here.”
Sunrise confirmed that it had employed Palacios, but its insurance carrier, the Insurance Company of the Americas of Bradenton, Fla., has refused to pay. It won’t discuss the denial but said in documents that “there is no employee/employer” relationship.
Palacios remains out of work. He’s scarred and in need of skin grafts, he said. He relies on his roommates to feed and care for him, and he’s received nothing from Sunrise.
The U.S. Department of Labor tracks workplace deaths and injuries, but officials haven’t assessed how undocumented workers fare. The only hint is the climbing and disproportionate number of workplace deaths among Hispanic and foreign-born workers, which includes many of those who are working illegally.
Workplace safety programs also are failing these workers, as the number of inspections and the staffers to do them has declined. The nation’s 2,300 inspectors check 1 percent of 7 million employers each year, and critics say fines are so low that risky operators consider them a cost of doing business.
“The regulators are rooted in paralysis,” said insurance analyst Peter Rousmaniere, who’s studied abuses of undocumented workers in a dozen states. “They don’t want to acknowledge these workers exist – so, in effect, they are allowing them to be abused.”
Workers’ compensation is regulated by the states, but most simply offer review boards to settle disputes. Few states look for abuses of undocumented workers, and some adopt regulations that freeze illegal workers out of injury benefits.
Florida recently rejected hundreds of workers’ comp claims because they didn’t include Social Security numbers, a procedure the state Supreme Court halted last year because the requirement violated privacy laws.
A few states – Florida, Michigan and Kansas – allow employers to limit benefits or fine injured workers who use phony Social Security numbers.
“What you have is 20th century legal principles trying to catch up with the 21st century reality of a global workforce,” said Bill Beardall, a lawyer and professor at the University of Texas at Austin.
“It takes time – and persistent injustice – for us to figure out that the old rules don’t fit.”
WORKERS’ COMPENSATION
Workers’ compensation is intended to protect labor and management.
The deal is employers pay for injured workers’ medical treatment, partial wages, disabilities and deaths, and employees can’t sue if they get hurt.
Every state requires such benefits, except Texas, which last year passed California to lead the country in workplace deaths of Hispanics. Workers comp is optional in Texas, but companies must cover all employees – legal and illegal – if they opt for the insurance.
While some states exempt tiny businesses and certain agricultural and domestic workers, almost all other workers are promised protection.
But employers have incentives to cover up injuries. Accidents drive up insurance costs and can attract investigators. And intimidation tactics work best against employees who speak little English, don’t know their rights and fear the threat of deportation.
“They are terrified of getting fired or being deported,” said Nan Lashuay, an assistant clinical professor and occupational health expert at the University of California, San Francisco. “There’s a lot of pressure. Some of them have families who are literally on the verge of starvation. … You can make here in a day what you make in a week in Mexico. And if you’re deported, it can be extremely difficult to get back into the U.S.”
Examples of abuse are widespread.
# In Boston, when a Brazilian restaurant worker stabbed his hand with a knife, his supervisor, acting as translator, told doctors the injury happened at home, legal advocates said.
# At a Mississippi poultry plant, bosses questioned the immigration status – then fired – an undocumented employee after he sought medical treatment for injuries to both arms, according to the worker and his case manager.
# In Florida, a 15-year-old Guatemalan boy picking peppers was run over by a truck in the field, then dumped at a hospital 25 miles away with no name or contact information for his employer.
It’s not unusual for bosses, known to workers only by nicknames and cell phone numbers, to abandon injured workers in unfamiliar areas without fear of reprisals.
“It’s an ugly secret, and it’s going on nationwide,” said Texas lawyer Richard Pena, the chairman of the American Bar Association’s immigration committee. “The employers and insurance companies profit … (while) immigrant workers often go back to their home countries broken and in pain.”
Insurers say they don’t track how many illegal workers file for injury benefits or how many workers’ families seek payment for deaths on the job. Most American companies take care of injured workers, employers say. They understand that the best way to keep productivity up and insurance premiums down is to run safe, responsible workplaces.
When someone is hurt, insurers say, they generally pay the claims, and immigration status doesn’t arise. When it does, they interpret state injury laws conservatively.
“Most accept that illegal aliens should be compensated. That doesn’t mean everybody is necessarily enthusiastic about it,” said Eric Oxfeld, a Washington, D.C., lobbyist for businesses.
If injuries aren’t reported, he said, “it has little to do with the employer, and everything to do with the workers’ fear that he might be sent home.”
SOME COMPANIES DISAGREE
Some companies, however, continue to argue that undocumented workers shouldn’t receive injury benefits.
Insurers may pay medical bills but refuse to cover workers’ lost wages and retraining costs, arguing that the workers can’t legally hold jobs and earn wages in the United States anyway.
“There are not across-the-board denials. My guess is that many thousands of illegal immigrants have been injured and treated through workers’ comp,” said Bob Hartwig, the chief economist for the Insurance Information Institute. “The problem is that many don’t get to the door. … Many of these people are intimidated in variety of ways by employers.”
Some companies – particularly in competitive and dangerous industries – seek to gain an edge by hiring illegal workers and then cheating them on pay and injury benefits.
“It’s a toxic cocktail,” said insurance analyst Rousmaniere. “You have employers who have great incentive to cheat workers, and you have large numbers of illegal workers who will accept lower labor standards. It’s causing our safety standards to erode – and that hurts legal workers, too.”
One employers’ trick is to go without workers’ comp insurance.
Investigators say that kind of fraud is far more common than the much-publicized cases of workers who fake injuries. Offenders typically are small companies in high-risk pursuits, in which annual insurance premiums can cost 50 percent or more of a company’s payroll. On average, companies pay about 1 percent of payroll toward premiums.
Employers also lie on payroll records – understating their size and job risks – to keep insurance costs down, which can leave workers without injury coverage.
Then there are more subtle tactics, such as the treatment an undocumented immigrant from South America got at a Mississippi poultry plant.
The worker slipped on a floor slick with chicken fat and landed hard, suffering two fractures in his back and a spinal dislocation.
The company-recommended doctor found no injury in his X-rays and cleared him to return to work, according to the worker and his legal advocates. He spent time sitting in a break room, too pained to work but prohibited from going home during work hours so the company wouldn’t have to report the injury.
As the pain in the worker’s leg grew, an orthopedic specialist finally examined the earlier X-rays and found the fractures, which required surgery.
“I can’t work as I did before. I’m going to have pain for all my life,” said the father of five, who asked not to be identified for fear of being fired.
He walks with a limp now. He gave up his $500-a-week job cutting bones from chicken thighs because he can’t stand up for long periods. But he still works at the poultry plant, where he now makes $300 a week mopping floors.
“When you’re cutting up chickens and working on a line where speed is everything, workers get cuts, broken fingers, repetitive motion injuries, or they get their hands caught in machines,” said Anita Grabowski, who coordinates the Mississippi Poultry Workers Center near Jackson, Miss., which gets a steady flow of immigrant workers injured in area plants.
“They may see a company doctor or nurse, but many times they’re given an aspirin or some cream and sent right back to the line that day. Their injuries are never reported, and they don’t get the treatment they need,” she said.
It was the insurance company, not the boss, that blocked benefits for Jose Hernandez. Adjusters for Florida Citrus, Business & Industries Fund began digging into his background on the day he lost his leg to the helicopter blade.
They quizzed his employer, Linda Rojas.
What’s his history?
What kind of employee was he?
What documents had he provided when he was hired?
“They kind of hounded me to say things about him that weren’t up to par,” Rojas recalled. But “I wasn’t going to say anything bad. … He was an excellent employee.”
Within a week, adjusters phoned Rojas with a decision: “We feel like he’s an illegal alien, and we’re going to use that to deny his claim,” Rojas remembers the agent saying.
She didn’t argue.
Rojas said she had mixed feelings. Hernandez deserved compensation because he was maimed for life, but she wasn’t sure that an illegal worker should be entitled to benefits. So she left things to her insurer.
Florida Citrus declined to discuss the case, but in its denial, the insurer charged that Hernandez violated state law by making “false” or “fraudulent” statements about his identity.
When Rojas hired him, Hernandez presented a Social Security card he bought in North Carolina. He’d picked strawberries there, and before that, he’d planted shrubs in Kansas City, cut pines in Washington state and picked grapes in California, living and working in the United States periodically for more than a decade.
“The `false’ statements Jose Hernandez made to get a job have nothing to do with his injury,” said lawyer Rosenthal, of West Palm Beach. “This man was almost killed working for an American company. Isn’t it right to compensate him?”
Florida Citrus settled the case for an undisclosed amount, but Hernandez remains in the Florida nursing home getting treatment, waiting to return to Mexico. His girls are 3 and 6 now, the boys 10 and 12. He hasn’t seen them in three years.
“The important thing is that some money is there to take care of us,” said Hernandez, 36. “I can’t walk, but I’ll keep trying to go forward. Thank God it didn’t get my arm – with my hands I can do anything.”
Rojas said she wasn’t surprised when her insurer “dropped us like a hot rock” after Hernandez’s injury. She paid double for a new policy and expects a price increase again this year.
She’s not sure whether her company, Rojas Brothers Grove Service, can afford to stay open or can continue to find workers willing to wade into swamps to chop trees.
“Not everybody wants to do this kind of work,” she said. “They’re going into swampy areas where you’ve got snakes and alligators. … It’s rough work.”

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