Workers' Compensation

The Return Of Krispy Kreme: Delaware Courts Ready To Revisit the Issue Of Illegal Aliens and Partial Disability?

This is a follow up to my post of 3/26/13—The Passover Post: Delaware IAB Comments on Residence Status and the Displaced Worker.   You may remember it, courtesy of claimant lawyer Mike Silverman -Angel Francisco v. Natural House, IAB# 1349699 (3/18/13). Citing the Gonzalez v. Krispy Kreme case, the proposition is: "Any difficulty finding work that flows from claimant's legal residency status is not relevant to the determination of prima facie displacement, as the factor is completely unrelated to the work injury." The Board awarded rejected the proposition of prima facie displacement and awarded partial disability based on the labor market survey.

Well, lo and behold, this case was cross-appealed.  The claimant appealed the finding that he was not a prima facie displaced worker and the employer appealed the award of temp partial based on the argument that any loss in earning power was not injury related but rather the by-product of the claimant’s undocumented status.  The Superior Court affirmed the IAB as to both issues and also distinguished this case from Campos v. Daisy Construction, CV N13A-07-002 ALR, 2014 Del. Super. LEXIS 13 (Del. Super. Ct. Jan. 16, 2014) which also denied temp partial to an illegal.

So how was Mike’s case different from Campos (which belongs to my partner Tim Lengkeek)?

·   The injured worker in Campos was released to his pre-injury level of employment.
·   The injured worker in Campos testified he could perform the same duties as prior to the work accident.
·   The employer testified that they would accept the claimant back to work but for his undocumented status.

The Court in Francisco recognized that that injured worker could not return to his pre-injury work capacity and per a showing from the employer’s labor market survey, any jobs compatible with claimant’s work restrictions would yield a lower rate of pay.  That, said the Court, is a reduced earning capacity directly tied to the work injury and not the illegal alien status.

See Angel Francisco v. Natural House, Inc.,  CV NI3A-04-012 CEB (Del. Super. Ct. May 6, 2014).

Okay, so here is what is really exciting about this post - First, talk about coming full circle-that one IAB case that keeps popping up, Tomas Gonzalez v. Krispy Kreme Donuts, was my case circa 2002.  Now some 12 years later, Tim Lengkeek’s case, Campos v. Daisy Construction, is on appeal to the Delaware Supreme Court and is scheduled for oral argument with the Court sitting en banc on September 24, 2014.  I don’t know about y’all, but I feel a swell of support for our undocumented friends.  Is a reversal of Campos afoot?

Irreverently yours,



 Visit Delaware Detour & Frolic, a law blog by Cassandra Roberts


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