workers comp benefits for injured illegal workers: where are we?

In yet another informative article on WorkCompCentral (subscription required), the legal status of illegal immigrants in the 50 states’ workers compensation systems is reviewed, with a case study from the District of Columbia. The article summaries the current situation, nationwide:
“Currently, Wyoming is the only state that expressly denies workers’ compensation benefits for injured workers. Lawmakers in Ohio talked earlier this year about passing legislation that would also prohibit illegals from participating in the workers’ compensation system. Bills have been introduced in Arizona in each of the past two legislative sessions, but failed to win approval. Alaska, Delaware, Indiana, Maine, Missouri, Rhode Island, South Dakota, Vermont, Washington, West Virginia and Wisconsin are silent on the issues, while the remaining states expressly include illegal aliens in their work comp statutes. Courts in Oregon, California and Nebraska have upheld decisions to deny vocational rehabilitation benefits to undocumented workers.”
Court: Illegal Alien Eligible for Total Temporary Disability Benefits
By Greg Jones, reporter
Palemon Casarrubia Gonzalez can’t legally work in the U.S., but an appellate court in Washington, D.C., ruled last week that he is entitled to temporary total disability benefits from the period he was injured until he was medically cleared to return to work.
The decision marks the first time a District of Columbia court has expressly stated that undocumented workers are entitled to participate in the workers’ compensation system, according to attorney Manuel Rivera, the Virginia attorney who represented Gonzalez. The decision addressed only Gonzalez’s entitlement to temporary disability benefits.
“It’s a very important decision for D.C. because this is the first time the D.C. court expressed itself about the rights of undocumented aliens to workers’ compensation,” Rivera said. “It’s a great decision and I think it is going to be cited again.”
The case is Asylum Co. et al. v. District of Columbia Department of Employment Services et al., 08-AA-1158, published Dec. 23.
Gonzalez was working as a bus boy for a bar owned by Asylum Co. on June 30, 2005, when a customer threw a bottle that struck him in the eye. Gonzalez suffered a dislocated lens in his right eye that required immediate medical treatment and later needed surgery. He initially suffered from 100% total loss of vision in his right eye, and from blurry vision and increased pressure in his eye while he was recovering.
Gonzalez attempted to return to work in a part-time position at Asylum July 17, 2005. He was told the company learned he was an undocumented alien and could not rehire him.
During the trial, the company said Gonzalez applied for the position under the name of Armando Casarrubias. The company did not learn of his immigration status until it received hospital bills for Gonzalez rather than Casarrubias.
Gonzalez filed for workers’ compensation benefits Aug. 15, 2005. Asylum neither started paying benefits nor filed a notice of controversion.


An administrative law judge ruled in August 2007 that Gonzalez was entitled to temporary total disability (TTD) wage loss benefits from the date of the injury until Jan. 26, 2006, when he was medically cleared for work.
The judge also found Asylum failed to file a timely notice of controversion and withheld payment in bad faith. Based on the finding of bad faith, the judge awarded TTD benefits in the amount of Gonzalez’s average weekly wage of $362.66. The judge also awarded an additional 10% penalty against the employer as well as interest on accrued benefits.
The Compensation Review Board (CRB) reviewed the decision and Asylum appealed to the District of Columbia Court of Appeals.
Asylum did not ask the appellate court to determine whether an undocumented alien is generally entitled to workers’ compensation benefits, but the court said it was required to answer that question before addressing other issues raised on appeal.
The appeals court said state law “neither excludes undocumented aliens nor makes a workers’ immigration status relevant.”
Rivera, an immigration lawyer who also handles workers’ compensation cases, said “logic and common sense” told him that Gonzalez was entitled to benefits because of the humanitarian aspects of the D.C. workers’ compensation program. He said proving that was more difficult.
Rivera pointed to decisions in New Jersey and Connecticut where courts found undocumented aliens meet the statutory definition of an “employee” under workers’ compensation systems that were also silent on immigration status.
The court agreed, saying a finding that the D.C. Workers’ Compensation Act does not apply to illegal aliens would create an incentive for employers to hire them because they would save on workers’ compensation costs.
“Interpreting the Act to exclude undocumented aliens, thereby permitting employers to avoid payment of benefits to such workers, could undermine the goal of encouraging employers to foster a workplace that is safe for all workers,” the court added. “Finally, as the CRB observed, interpreting the term ’employee’ in the Act to include undocumented workers is consistent with the principle that the Act is to be construed liberally to achieve its humanitarian purpose.”
The court then looked at the contention raised by Asylum that Gonzalez was not entitled to wage-loss benefits for the period after it learned of his immigration status on July 17, 2005. Asylum argued that Gonzalez’s immigration status, and not the injury, prevented him from working at the time.
The court noted that Gonzalez was not medically cleared to return to work, but he attempted to do so anyway.
“To be sure, claimant’s termination prevented him from working for the employer and his undocumented status prevented other employers in the United States from lawfully employing him,” the court said. “But it was the work-related injury to claimant’s eye, and the time required for claimant to recover from that injury and to adjust to his impaired vision, that made him physically unable to return to comparable wage-earning anywhere, thereby rendering him ‘disabled’ within the meaning of the Act.”
The court also dismissed the argument made by Asylum that the full weekly wage payment imposed because of the finding of bad faith — as opposed to the 66.66% of the average weekly wage Gonzalez would be entitled to without a finding of bad faith — amounted to an award of back pay or constituted sanctions for hiring an illegal alien.
However, the court did say that the administrative law judge did not consider Asylum’s evidence of good faith, which would have shifted the burden back to Gonzalez to prove the reasons for nonpayment were pretextual. Similarly, the review board should not have affirmed the finding of bad faith based on the same mistake.
An Asylum employee testified he did not know what a notice of controversion was, and the appeals court said if that claim was credited, it would be inappropriate to treat Asylum’s failure to file such a notice as an act of bad faith. The appeals court said the administrative judge incorrectly assumed that failing to file notice of controversion is, in and of itself, an act of bad faith.
“Another fact that potentially was relevant to the issue of bad faith, but which the (administrative judge) did not discuss, is claimant’s attempt to return to work on July 17, 2005 — an effort that the (administrative judge) found was contrary to medical advice, but that may be relevant to whether the employer was aware of, or had a reason to be skeptical about, claimant’s ongoing physical incapacity,” the appeals court said.
The court affirmed the review board’s determination that Gonzalez is entitled to temporary total disability benefits, but remanded the case for further proceedings to determine whether Asylum acted in bad faith.
Gonzalez’s attorney said he has not reviewed this portion of the decision, but he is confident he will prevail on the issue of bad faith.
Rivera said additional evidence in the record shows the employer knew when it hired Gonzalez that he was an undocumented worker.
Rivera also said in this case, the employer might have delayed payments hoping the case might go away.
Rivera said he has encountered similar tactics used by other employers and insurance companies in cases dealing with illegal aliens. He said he has had to obtain default judgments and threaten to take legal action to get money for his clients in the past before insurance companies would pay approved claims.
“It’s a rampant abuse to undocumented employees by employers and insurance companies as well that know if they delay the process, they can get away without paying benefits to an employee,” he said. “They play the numbers and do it so often that at the end of the day they collect a profit because they have to pay one or two claims, but some lawyers might give up.”
Currently, Wyoming is the only state that expressly denies workers’ compensation benefits for injured workers. Lawmakers in Ohio talked earlier this year about passing legislation that would also prohibit illegals from participating in the workers’ compensation system. Bills have been introduced in Arizona in each of the past two legislative sessions, but failed to win approval.
Alaska, Delaware, Indiana, Maine, Missouri, Rhode Island, South Dakota, Vermont, Washington, West Virginia and Wisconsin are silent on the issues, while the remaining states expressly include illegal aliens in their work comp statutes.
Courts in Oregon, California and Nebraska have upheld decisions to deny vocational rehabilitation benefits to undocumented workers.

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