Undocumented Alien Awarded Permanent Total Disability Benefits

12-28-08

Illinois recently joined a majority of states in formally recognizing an illegal alien’s right to receive workers compensation benefits. As noted by our Illinois Supreme Court as far back as 1916, the Illinois Workers Compensation Act includes “aliens” as covered employees. Chicago and much of our country were built by immigrants so its of little surprise that they would be covered as employees under our workers compensation statute.

The Illinois Workers Compensation Act specifically defines the term “Employee” to include “[e]very person in the service of another under any contract of hire... including aliens.” 820 ILCS 305/1(b)(2) (West 2002). The Act does not further define “aliens” to make any distinction between a legal registered alien and an illegal undocumented alien.

Larson on Workers' Compensation Law §66.03: Employment of Illegal Aliens notes that employers in a few other states have attempted to challenge the rights of illegal aliens to workers compensation benefits based on the misrepresentations of illegal aliens in obtaining employment to begin with, thereby voiding the employment relationship. However, the great majority of states, including Illinois, allow for workers compensation benefits for illegal aliens with a few exceptions.

The Federal Immigration Reform and Control Act of 1986 (IRCA) makes it unlawful for any employer to knowingly hire an illegal alien. Therefore, when dealing with a workers compensation claim, an injured illegal alien’s ability to return to work despite their illegal status or their ability to earn future wages after an injury appears to remain in question, purely speculative or the subject of vocational expert opinion testimony.

The rights of injured illegal alien workers to receive medical care, temporary disability benefits and permanent disability awards in Illinois are really not in question. The tougher questions involve an employers’ obligation to return an injured illegal alien to work within light duty restrictions or face continuing payments of temporary disability benefits during a light duty return to work release, rights to vocational rehabilitation, rights to maintenance benefits, entitlement to wage differential benefits or the duty of an injured worker to search for work in the face of an obvious inability to legally return to work.

In the case of Economy Packing, an injured 60 year old, Mexican female, illegal alien, was employed at Economy Packing manually deboning chickens. Following a slip and fall shoulder injury and subsequent surgery, she was unable to return to regular work due to her permanent 10 lb. lifting restrictions and no work over the shoulder restrictions. She had very little education, she couldn’t drive, she had no special skills and she spoke only Spanish.

Her attorney claimed an entitlement to “odd lot” permanent total disability benefits for life, claiming that there was no stable job market available in Illinois for a person of like age, education, skills and physical restrictions irrespective of her illegal alien status. Vocational rehabilitation experts were called in to testify but they strongly disagreed as to whether the worker could or could not return to work in any stable job market, but for her illegal immigration status.

In looking at the Illinois Workers Compensation Act, the Economy court looked first to the plain meaning of “aliens,” which would include not only foreign-born citizens that can be legally employed to work, but the word aliens would also include those illegal aliens that cannot be legally employed. If the legislature had intended any other meaning for aliens, it could have defined the term “aliens” or modified the meaning with specific language.

In Economy, the court concluded that all aliens, whether legal or illegal, engaged in the service of another, pursuant to a contract for hire, regardless of immigration status, are to be considered “employees” within the meaning of the Illinois Workers Compensation Act and that they are entitled to receive Illinois workers' compensation benefits. This is important because it appears to be the first official pronouncement.

It has been argued that denying illegal aliens the right to receive workers compensation benefits could create a permanent class of disposable workers. Denying illegal aliens benefits could actually provide a financial incentive for employers to employ more illegal aliens since they could then knowingly save associated workers compensation injury costs that would otherwise be payable for legal employees. Larson also notes the possibility that if injured illegal alien workers are not covered under workers compensation statutes, that employers would likely loose their exclusive remedy defenses and could then be sued in negligence for personal injuries stemming from an employer’s negligence. This is not an option that most employers would choose.

So if illegal aliens are entitled to workers compensation benefits in Illinois, what are the employee’s rights and the employer’s obligations for returning an injured worker to work or the rights of illegal workers to formal vocational rehabilitation benefits for a return to the workforce in the face of the illegal employment status ??

In the only case on point, the Illinois Workers Compensation Commission held that illegal aliens are entitled to medical and vocational rehabilitation benefits necessary to return them to work in any country where they could be legally employed but, that illegal aliens are not entitled to vocational job placement assistance because of the illegality of mandating employers to assist in obtaining subsequent illegal employment. Tamayo v. American Excelsior (1999) 99 IIC 521.

In Economy, our Appellate Court found that an undocumented alien can be entitled to permanent and total disability benefits, if she can prove that she cannot engage in employment in any well-known branch of the labor market specifically due to her injuries, without regard to her undocumented status. The burden then shifts to the employer to prove that, “but for” the legal inability to obtain employment, suitable work would have been “regularly and continuously” available to a person of like age, skills, education and physical restrictions.

The Appellate Court affirmed the Commission’s award of permanent total disability benefits not withstanding the injured workers’ illegal alien status. Economy Packing Co. v. Illinois Workers' Compensation Com'n, (Ill.App. 1 Dist., December 09, 2008) --- N.E.2d ----, 2008 WL 5205004.

The tough questions regarding an employers’ obligation to continue payments of temporary disability benefits during a light duty release to return to work or the duty of an injured worker to search for work in the face of an obvious inability to legally return to work remain to be answered. The employer may or may not be required to continue temporary disability payments during a light duty release to return to work where they have light duty available while it appears that wage differential cases will now turn on expert testimony by vocational and labor market experts.

Chicago Workers Compensation Attorneys -- http://wc-chicago.com -- 12-28-08