Workers' Compensation

Delaware: Undocumented Worker Entitled to Total Disability Benefits as “Displaced” Worker

The Supreme Court of Delaware has held that a worker’s undocumented status is one factor that should be considered in determining whether a worker is deemed to be “displaced”—so disabled by a compensable injury that he or she will no longer be employed regularly in any well-known branch of the competitive labor market and will require a specially created job to be steadily employed. The employer contended that a worker’s immigration status was not relevant factor to be considered. The Court agreed that an undocumented worker’s immigration status was not relevant to determining whether she was a prima facie displaced worker, but it was a relevant factor to be considered in determining whether she is an actually displaced worker. The Court indicated that the Industrial Accident Board correctly rejected the employer’s evidence of regular employment opportunities for the worker because that evidence failed to consider her undocumented status.

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is the co-author of Larson’s Workers’ Compensation Law (LexisNexis).

LexisNexis Online Subscribers: Citations below link to Lexis Advance.

See Roos Foods v. Guardado, 2016 Del. LEXIS 620 (Nov. 29, 2016)

See generally Larson’s Workers’ Compensation Law, § 83.01.

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law