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So fresh off the revelry of the Holland Workers Compensation Inn of Court and coming down from the sugar high created by cheesecake on parade, I hear from my dear one, Walt Schmittinger. And while I applaud Walt for his timely sharing of an IAB ruling that is destined to create a lot of fervor in the comp community, I personally experienced a vicarious and collective shudder on behalf of all local employers. Say it ain’t so!
So what am I talking about?
Magdalena Guardado v. Roos Foods, IAB #1405006 (4/7/15). Petition for Review of Compensation Agreement denied by virtue of a flawed labor market survey. The gist of the case is that claimant was an illegal alien. The labor market survey showed job availability—but not to illegal aliens. Thus, that second prong of the employer’s burden of proof is not met and the PFR is denied. Otherwise stated, the Campos decision has now been extended from TPD to TTD, arguably rendering all illegals “displaced” as a matter of law.
I know my defense-bias is showing here, but this ruling seems to reach the height of lunacy. It is kind of the Melgar-Ramirez case on steroids. You remember that case don’t you? The one that says if claimant is deported you are good to cut off TTD…..as long as you can find a DME doc and vocational expert in Guatemala. And then we have Campos which says illegals aren’t disqualified from diminished earning capacity benefits just because they are illegals.
So here is what Walt had to say:
Got a new decision from the Board - Guardado v. Roos Foods. I wondered when I saw the Campos decision why it wouldn’t also apply to total disability benefits — if you’re legally unemployable, doesn’t that by definition make you a prima facie displaced worker if you’ve lost your job due to the work injury? Now we have that answer...
And here is what defense counsel Andy Carmine offers:
After reviewing this decision in conjunction with Campos and Ramirez, the Court’s agenda (with all due respect) is to place the onus entirely on the employer to thwart greedy businesses from exploiting undocumented workers for the benefits of paying less wages and less workers’ compensation benefits. No argument can (or should) be made against the Court’s desire to inhibit employers from hiring and exploiting undocumented workers to reduce labor costs.
However, these cases don’t address the injured worker’s duty to make an effort to become re-employed. On the issue of the injured worker’s duty, the Campos decision is self-conflicting as it places the entire burden on the employer to overcome the claimant’s illegal status, while stating that the employer “could only hire Campos if he could present authorization to work, which he cannot do.”
Does this not put the ball in the injured worker’s hands to now become legal? The Court further states in Campos that “to find that [the employer] could terminate [claimant’s] benefits without making a proper demonstration of job availability… would leave [the claimant] with no recourse following his disabling injury.” But the injured worker does have recourse, as he and only he is capable of becoming employable by gaining authorization to legally work. Rather, these decisions truly leave the employer with no recourse.
I hope it is possible for the Court to produce an opinion on this issue that simultaneously deters employers from hiring undocumented workers and deters undocumented workers from staying illegal? Big picture – probably not, as the Court and the Country as a whole definitely believe that the best way to resolve the issue of undocumented workers is to stop employers from hiring them.
So what do you think, dear readers? My best guess is that this issue, as with most others in comp, will split down partisan lines. To my simple way of thinking, if you are legally unemployable due to illegal alien status, how can the tribunal ever correctly come down in a way that imputes the lack of employability to a work accident and its residual? And if there is a punitive intent toward employers based on what many of us perceive to be the tribunal’s belief that employers, too, are gaming the system by knowingly hiring illegals to obtain financial benefit, aren’t there better ways to address that concern, short of creating havoc with the work comp system?
Time to address this legislatively as many other jurisdictions have done?
I think I need a weekend. Happy Friday!
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