Illegal status does not prevent worker from TTD entitlement

In Nebraska, even though an employee may not be legally authorized to work, he may receive TTD benefits if his work injury is a factor in his inability to return to work.

Case name: Visoso v. Cargill Meat Solutions, No. A-09-339 (Neb. Ct. App. 12/08/09).

Ruling: The Nebraska Court of Appeals affirmed a finding that an illegal alien was entitled to temporary total disability benefits. It held that a finding for vocational rehabilitation was premature.

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What it means: In Nebraska, even though an employee may not be legally authorized to work, he may receive TTD benefits if his work injury is a factor in his inability to return to work. A determination of an employee's entitlement to vocational rehabilitation is made at the time of maximum medical improvement.

Summary: An undocumented alien was injured at work when a 100-pound slab of meat struck him on the head. The employer argued that TTD benefits should not be paid, reasoning that benefits are payable when an employee is unable to work because of an accident, not because of his immigration status. The appeals court rejected the employer's argument. It pointed out that under the Nebraska Workers' Compensation Act, "worker" includes "every person in the service of an employer ... including aliens." It noted that the definition of TTD includes the time when the employee is suffering from the injury and is unable to work because of the accident. Therefore, even though the employee's work status would otherwise prevent him from working, he was nonetheless entitled to TTD benefits because one of the causes of his inability to work was the work injury. It affirmed the finding that his status did not impact his entitlement to benefits.

The employer also contested the worker's entitlement to vocational rehabilitation based on his illegal status. Noting that the purpose of vocational rehabilitation is to restore the injured worker to suitable gainful employment, the court pointed out that the worker must also be eligible to return to some form of employment. However, any determination of a worker's entitlement to vocational rehabilitation is made at the time of maximum medical improvement. The court held that a determination of his eligibility was premature because the worker had not reached MMI. Since the worker had not reached MMI, the determination was premature.

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February 8, 2010

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