Undocumented alien wins permanent benefits despite work ineligibility
Moyera v. Quality Pork International, No. S-12-208 (Neb. 01/04/13).
Ruling: The Nebraska Supreme Court held that an illegal alien was entitled to permanent total disability benefits.
What it means: In Nebraska, illegal aliens can be entitled to PTD benefits for work-related injuries.
Summary: A worker, who was an illegal alien, was injured when his foot was crushed by a forklift. He had multiple bone fractures and developed complex regional pain syndrome. Later, he had a gait derangement and had to walk with a cane. The employer terminated him when it determined that he did not have proper documentation to show that he could legally work in the United States. A rehabilitation consultant concluded that because of his permanent restrictions and his inability to speak English he was not competitively employable and experienced a 100 percent loss of earning capacity. The Nebraska Supreme Court held that the worker was entitled to PTD benefits.
The employer contended that benefits for permanent loss of earning power should be barred because they depended on a worker's ability to obtain lawful employment in the United States. The court found that workers' compensation covers both legal and illegal aliens.
The court explained that a worker's diminution of employability or loss of earning capacity do not depend on a finding that the worker could not be placed in a job with the same employer or in a job with a different employer. Other state courts have concluded that even if undocumented employees cannot legally work in the United States they could have worked somewhere else but for their work-related injury. Other courts have reasoned that excluding undocumented workers from receiving disability benefits creates a financial incentive for employers to continue hiring them.
The court found evidence that the worker's gait derangement caused pain in his hips and lower back. The worker testified that he had strong back pain traveling up his foot if he supported himself on his foot for more than 15 minutes. The employer did not contest the rehabilitation consultant's employability findings. The court found a total permanent disability.
Read more at the WorkersComp Forum homepage.
April 18, 2013
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