Montana proposal raises questions about rights of injured illegal aliens

Montana could become one, if not the only, state to implement an outright ban on providing workers' comp benefits to undocumented workers. A proposal being considered by the Legislature raises a number of issues about whether to include illegal aliens in the workers' comp system.

H.B. 71 in Montana is called An Act Providing that Certain Illegal Aliens are Not Entitled to Workers' Compensation Wage-Loss and Medical Benefits for a Work-related Injury or Disease. It was the subject of a hearing before a legislative committee in January.

"It basically says if you are applying for benefits and the defense is that you are not qualified to receive them because you are an illegal alien, you must prove you actually are qualified. In other words, you were not an illegal alien when you were injured," said attorney Jim Pocius, a shareholder with Marshall, Dennehey, Warner, Coleman & Goggin in Philadelphia. "It puts the burden of proof on the individual rather than the employer or insurer. They've taken any responsibility away from the employer to check on the status of the worker before they hire him."

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That could create an unintended consequence. "Does that leave a loophole whereby an employer would now want to hire illegal aliens since they may work for less?" Pocius asked. On the other hand, he said it also leaves employers open to possible tort liability.

The overall issue of whether to include undocumented workers in the workers' comp system is being seen throughout the country. About half the states have enacted legislation, though they vary in terms of how much, if any, coverage to provide.

"California treats illegal aliens just like any other injured worker and provides complete workers' comp benefits," Pocius said. "Other states have more restricted benefits."

Pennsylvania and Oregon, for example, provide coverage up to a point. Benefits are provided until the employer can show the worker is medically able to work.

"Pennsylvania recognizes claims of illegal aliens but has given employers and insurers a way to decrease or end indemnity benefits based on earning capacity," Pocius said. "In other words, if an injured worker is restricted by law from obtaining another job, indemnity benefits for their claim ends but they are still covered medically."

Several states require employers to offer light-duty jobs and require the injured worker to reapply for the work.

"In Georgia, the employer can show the worker was offered light-duty work but couldn't do it" due to his illegal status, said attorney Rusty Watts, a partner at Swift, Currie, McGhee & Hiers in Atlanta. "In Florida, the injured worker has a responsibility to do a job search to receive benefits, but they can't [due to their illegal status] so you can suspend benefits."

The issue of whether and how far to cover undocumented workers in the workers' comp system also extends to vocational rehabilitation. "Do you have to train somebody to take a job they can't legally apply for?" Watts said. "I see that as the next big battleground."

Read more at the WorkersComp Forum homepage.

January 31, 2011

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