The Mexican born, spanish speaking worker, whose foot was crushed by a forklift at a pork processing plant, must now walk with a cane and has been ruled to have "lost 100 percent of his earning capacity as a result of the injury". The employer had relied on a 2005 Nebraska Supreme Court ruling that said illegal immigrants are not entitled to vocational rehabilitation services because they are not employable in the United States. Their attorneys argued that benefits for a permanent loss of earning power also should depend on an employee's ability to obtain lawful employment.
The Supreme Court found otherwise, drawing "a distinction between vocational rehabilitation and disability compensation". They essentially ruled that if a worker's immigration status makes him ineligible to return to work, the Workers' Compensation Court cannot order retraining for a different career, but that apparently does not preclude the employers responsibility to provide lost wages the employee would have otherwise (illegally) obtained.
I am not an anti-immigration person. In fact, my opinion runs counter to many who share my conservative political proclivities. I believe our immigration policies are completely dysfunctional, and good people who wish to build a life here legally should have that opportunity, as so many have done before them. However, I also believe people coming here should respect the language and customs of the land, as those same who came before them did. That is probably a subject best left for another time, but with that noted I must say this case leaves me with several questions.
I have run counter to many in our industry who believe illegals should be entitled to no benefits under workers' comp. I do believe that, particularly on the medical side, that is an improper view. Rightly or wrongly, the employer received the benefit of a persons labor, and if they are injured performing that job, our moral obligations to treat the injured should not hinge on their legal status. Indemnity however, is a different story.
Having stated my overall views towards immigration, I must say I believe that illegal is still that, illegal, and as long as the laws are structured in such a way, illegals should be treated as such. That presents in my mind the overriding question:
Why is this guy still here?
Clearly that is a political issue far beyond the realm of our workers' comp discussion, but it has direct ramifications on it. In this particular case, there is no indication that the employer knowingly accepted forged papers or otherwise knew the employee was illegal when they hired him. In fact, our legal system after the 1986 Immigration Reform and Control Act removes any ability for them to act on mere suspicion. If his paperwork is in order, then that's it baby. That is all she wrote. Welcome to America and our pig slaughtering operation. However, we now find it is this workers ultimate illegality that is now completely hamstringing our pork producers.
Lets face it. Other people who walk with a cane can perform many jobs. They also speak English. They have an education. They can be retrained. And they can accept employment legally in this country. This worker is not 100% disabled. He is 100% illegal. That is the real problem here, and that is really what this employer now has to pay for. The truth is they would not have such a large indemnity obligation if this worker were legally able to accept retraining and employment elsewhere.
For the sake of argument, if we have to accept the notion that this is a legal responsibility, why shouldn't those benefits (ongoing medical and indemnity) be based on the workers country of origin, the place he would theoretically be returning to if we actually enforced our immigration laws?
As usual, we can only ponder. Ponder while we work within the dysfunctional laws of our land, and the decisions that state Supreme Justices render. The Nebraska Supremes are not isolated here. Other courts have made similar decisions. The true lesson is that employers must be extra vigilant in verifying that their employees are here legally. The ramifications of having someone injured who, primarily due to their legal status and a lesser degree their educational status, will become a permanent ward of your company are just too great. It turns out being 100% illegal is the most disabling condition of all.
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Robert Wilson is President & CEO of WorkersCompensation.com, and "From Bob's Cluttered Desk" comes his (often incoherent) thoughts, ramblings, observations and rants - often on workers' comp or employment issues, but occasionally not.
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