Thomas A. Robinson on Illegal Aliens & Workers' Compensation: Curiel v. Environmental Mgmt Svcs

Few issues these days have the power to monopolize/polarize the political discussion like that of illegal immigration.  Should millions, if not billions, of dollars be allocated to build a wall to separate “us” from “them?”  Should driver’s licenses be available without respect to legal status?  Should children born in this country to illegal aliens be deported?  Should aid to be increased, with the idea that in doing so, the reasons for the exodus to the North would be diminished?  These “macro” questions, and others, are dominating the national political landscape. 

 Along side the national issues are local ones: should an injured worker receive full workers’ compensation benefits in spite of the fact that he or she obtained employment in the first place with fraudulent documentation?  Should an employer continue to pay temporary total disability to a worker who has reached maximum medical improvement, yet cannot legally return to work because he or she did not enter the country legally?

In a recent case involving the workers’ compensation status of illegal aliens, Curiel v. Environmental Management Services, 2007 S.C. LEXIS 421 (October 30, 2007), the Supreme Court of South Carolina ruled that an injured worker was entitled to benefits in spite of his “illegal” status, and that the fact that his employment was procured through fraudulent means did not disqualify him from benefits under South Carolina law.  This expert commentary analyzes the case, surveys the law in other states, discusses relevant issues related to the status of illegal aliens within the workers’ compensation context, and observes that the issue will continue to trouble the states until some sort of national policy is hammered out.

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