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Workers' Compensation

The Dearly Deported—Illegal Alien Status Does Not Work a Forfeiture in Delaware

It is good to be back.  For those who have been out of the loop, Young Conaway moved its office from the Brandywine Building to the Courthouse on Rodney Square.  Beautiful new digs, all the better to inspire the muse. Unpacking the 25 box Case Law Library has been no small task and as such, I have been away from the keyboard.

Hopefully today's case is not old news.  A shout-out to Jessica Welch for flagging it the first time about a month ago (it is her case) and to Dennis Menton for reminding me today that it is blog-worthy.  Currently on appeal to the Superior Court, I present to you Saul Melgar Ramirez v. Delaware Valley Field Services, IAB#1363724 (12/19/11).   There is so much special about this case, not the least of which it is a "Chris Baum cherishable".

So what is the issue?

Claimant is an illegal alien from Honduras.  The case comes to the Board on a Termination Petition.  Claimant was not at the hearing, having since been deported to the Honduras.  A Hearing without a claimant-wow.  A deported claimant-big wow.

Now here's where it gets creative, with props to defense counsel Bob Richter of Elzufon Austin Tarlov & Mondell, showing himself to be a real Iron Man of legal argument.    Bob advanced three arguments:

#1  The contract of employment should be deemed void based on fraud under the Immigration Reform Control Act of 1986 (IRCA)  and 8 USC Section 1324(a).  It would then follow that the claimant is not entitled to workers comp.  Employer testified that Claimant supplied both a false resident alien identification number and a false Social Security number.

#2  Since claimant has been deported, he is unavailable to present himself for a DME at employer's request at reasonable times and places, triggering forfeiture on the basis of "refusal" under 19 Del. Code Section 2343(b).

#3 The statute involving forfeiture due to incarceration, 19 Del. Code Section 2353(d) should apply.

So what happened?

Well in a decision that is nothing short of a treatise on the subject, Chief Hearing Officer examines all three arguments and finds that none of them carry the day.   Read the decision and find out why not only in The First State but elsewhere.  And since there was no medical evidence that claimant was no longer totally disabled, the Review Term was denied (talk about adding insult to injury).

But being the ferocious watchdog of insurance carrier justice and fair play that he is, Bob has appealed this ruling.  It will be interesting to see whether the Superior Court tells Bob's client they have to find a DME doc in Honduras (like that is really gonna happen).  Maybe the claimant will simply collect comp until he dies.

That would be one way to ride the gravy train of workers comp......

Or should I say la vaca atada?

Irreverently yours,
Cassandra Roberts

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

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