Undocumented, and Unprotected? Vocational Benefits Ruled Out for Undocumented Immigrants in NE, but Work Comp Coverage is Still a Possibility

This is the next article in WorkersCompensation.com's “Undocumented, and Unprotected?” series, as our writers explore what is it like to be an undocumented worker in the U.S., and what it means regarding workers' compensation.

Lincoln, NE (WorkersCompensation.com) – In Nebraska, undocumented workers can receive just about all workers’ compensation benefits except for vocational rehabilitation benefits.

One of the major cases in Nebraska involving illegal immigrants is outlined in Ortiz vs. Cement Products Inc. Ortiz came to the U.S. illegally in 1990, was hurt on the job when a “large bucket of cement” fell on his leg, according to court records. The compensation court found Ortiz was entitled to vocational rehabilitation benefits, despite being illegal. However, an appeals court in 2001 found that because Ortiz vowed to remain illegal, vocational rehabilitation benefits would be denied.   

“The employer, when they hired him, told them he was undocumented and that he didn’t have the proper paperwork,” said Todd Bennett, a workers’ compensation attorney in Lincoln. “All of them knew he was undocumented.”

The appeals court argued that because Ortiz was not lawfully able to work in the United States, he was unable to receive benefits to send him back to work.

Bennett argued to have the benefits paid, but requested the rehab would take place in Mexico instead of the United States. The court wouldn’t agree.

“They didn’t want that issue to be codified by the Supreme Court of Nebraska,” he said.

Bennett said he’s argued similar cases where if rehab benefits aren’t paid, then permanent disability needs to be raised.

“What may be 20 percent here, may be 100 percent elsewhere because they can’t do manual labor,” he said.

According to numbers compiled by the Pew Research Institute, Nebraska has about 45,000 illegal immigrants. The numbers were compiled in a 2014 study and many immigration experts claim because of stepped-up enforcement in recent years, numbers of undocumented workers are dropping.

Joe Rehm, a workers’ comp attorney in Lincoln, said in theory, there’s no problem, but believes there’s been a “change” in how these types of cases are defended now that President Trump is in the White House. 

“There’s implicit threats to employees if they turn stuff over,” he said, “or if they turn it in or if they get into litigation if the defense sniffs out that they are illegal, there can be questions and intimidation in legal practice.”

Rehm said after raids at a Grand Island meatpacking plant is when things began to change. Immigration and Customs Enforcement (ICE) raided the business over stolen Social Security Numbers, it said, according to information published in the Lincoln-Journal Star.

“I think with fear of being deported or fear of ICE, people are less likely to report a workers’ compensation claim,” said Rehm, who said he hears a lot of stories anecdotally.

Rehm said his biggest client base are Cuban-Americans, who mostly have asylum, especially if they’ve been in the United States for some time.

“They don’t have the same issues,” he said.

Rehm said if a client was using a false Social Security Number, it wouldn’t be an issue.

“You could just not ask for vocational rehab and then it shouldn’t be an issue,” he said. “They shouldn’t be able to ask about it (immigration status).”

Rehm said he would like to see vocational rehab included in the statute.

“I’d like to see ICE abolished or have them change policies so they aren’t yanking people off the streets,” he said.

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