The Equal Protection Clause and the Payment of Temporary Partial Disability to the Illegal Worker

California Labor Code Section 1171.5 indicates that all protections, rights and remedies are available to all individuals regardless of their immigration status. In Del Taco v. Workers’ Comp. Appeals Board (2000) 79 Cal.App.4th 1437 [65 Cal. Comp. Cases 342] the California Court of Appeals held that though the immigration status of an injured worker is not relevant to the issue of temporary disability, the injured worker was not entitled to vocational rehabilitation benefits where the employee is not able to return to work solely because of his immigration status. An interesting issue arises where an employer would offer an employee modified work prior to the employee’s permanent and stationary status but cannot because the injured worker is an illegal worker and to do so would subject its officers to civil penalties, criminal fines and possible imprisonment.

In Cubedo v. Leemar Enterprises, Inc. (ADJ7014822), 2011 Cal. Wrk. Comp. P.D. LEXIS 356, Defendant sought reconsideration of the WCJ's award of temporary total disability benefits to Applicant who suffered an admitted industrial spine injury on 6/24/2009 while employed by Defendant as a cashier. In challenging the temporary disability award, Defendant alleged that Applicant was medically eligible to work in a modified capacity during the period for which she was awarded temporary total disability benefits, but could not accept modified work solely because of her undocumented work status. Defendant contended, in relevant portion, that by awarding temporary total disability benefits to Applicant, an illegal resident, the WCJ violated the Equal Protection Clause of the 14th Amendment to the United States Constitution.

The California WCAB granted reconsideration and rescinded the WCJ’s decision, holding that the WCJ’s award of temporary total disability indemnity was not supported by substantial evidence and was inconsistent with the holding in Del Taco v. Workers’ Comp. Appeals Board (2000) 79 Cal. App. 4th 1437, 94 Cal. Rptr. 2d 825, 65 Cal. Comp. Cases 342. According to the WCAB, the evidence, including reports of Applicant’s treating physicians and the panel QME, established that Applicant suffered temporary disability following her industrial injury, but was only partially disabled and was able to work in a modified job for some periods of her temporary disability. Testimony offered at trial by both Applicant and two defense witnesses indicated that Applicant was offered modified work and worked in a modified position, but ultimately stopped working due to her undocumented work status. Applicant also testified that she stopped working for Defendant in 7/2009 due to her industrial injury.

In its Decision After Reconsideration, the WCAB explained that, in 2002, the California Legislature declared that the immigration status of a person employed in California is irrelevant when it comes to extending “all protections, rights and remedies available under state law.” The only exception to this protection limits the imposition of the remedy of reinstatement to employment if reinstatement would be prohibited under federal law. The WCAB also noted as follows:

In Del Taco v. Workers’ Comp. Appeals Board (2000) 79 Cal.App. 4th 1437 [65 Cal.Comp.Cases 342], the Appeals Court held that, although an injured worker’s immigration status is not relevant to the issue of entitlement to temporary disability, the injured worker is not entitled to vocational rehabilitation benefits where the employee is unable to return to work solely because of immigration status. In addressing the issue of entitlement to temporary disability, the Court stated that:

“Worker’s immigration status does not affect his entitlement to temporary disability payments. As indicated, the workers’ compensation statutes apply to ‘every person in the service of an employer ... whether lawfully or unlawfully employed, and includes: [ ] (a) Aliens and minors.’ (§ 3351.) A citizen or legal resident alien would be entitled to disability benefits if he or she had been injured while working for Del Taco under comparable facts. Here, worker is unable to work as a result of the work related injury and is entitled to disability benefits wherever he is residing, legally or illegally.” (Del Taco, supra, 65 Cal.Comp.Cases at p.345.)

Nevertheless, with regard to the issue of entitlement to vocational rehabilitation services, the Court found that, where it is an injured worker’s immigration status that precludes him or her from returning to work, the injured worker is not entitled to vocational rehabilitation services as awarding such benefits would deprive the employer from equal protection under the 14th Amendment to the United States Constitution. (Del Taco, supra, 65 Cal.Comp.Cases at p.345.)

Here, Applicant’s treating physician found her to be temporarily totally disabled from at least 3/29/2010 to 4/26/2010 and from 5/3/2010 to 6/1/2010. The WCAB determined that during these periods and any other periods during which Applicant was temporarily totally disabled based on substantial evidence, Applicant was entitled to temporary disability benefits pursuant to the holding in Del Taco.  However, the WCAB found that if Defendant made a legitimate offer of modified work that Applicant could not accept solely because of her residency status, Defendant was not alternatively liable for temporary total disability benefits. (See Del Taco).

Because there was conflicting testimony regarding whether and for what periods Applicant worked in a modified capacity, and there were no wage records in evidence, the WCAB concluded that the record was not sufficiently developed to determine the issue of Applicant’s entitlement to temporary disability for the entire period from 6/24/2009 to the present, as awarded by the WCJ. Accordingly, the WCAB remanded the matter to the trial level for further proceedings to develop the record on these issues.

In conclusion, the panel here essentially concludes that to afford the illegal worker temporary partial disability in this setting would constitute a more extensive benefit than that available to a legal worker. The argument is that the legal worker would have to return to the modified duty position if offered and not just be entitled to receive his temporary disability. It will be interesting to see if the appellate courts adopt this panel’s extension of the equal protection analysis to the receipt of temporary partial disability.

© Copyright 2011 LexisNexis. All rights reserved. This article will appear in an upcoming issue of the California WCAB Noteworthy Panel Decisions Reporter.