If you have already read today's News Journal or my colleague Molly DiBianca's Delaware Employment Law Blog, then I am a little late to the party. Perhaps you recall my post of 2/9/12 titled "The Dearly Deported-Illegal Alien Status does not work a Forfeiture in Delaware" which highlighted a recent IAB decision rejecting the concept that illegals were barred from receipt of workers compensation--a concept that was cleverly advanced by the defense for multiple well-considered, although judicially-rejected, reasons.
Today's case, which I have no doubt every blessed one of you will download, is Delaware Valley Field Services v. Ramirez, No. 12A-01-007-JOH (September 13, 2012). The facts in a nutshell:
• Claimant was in this country illegally.
• His Social Security number, when finally obtained, was false as was the information on his I-9.
• He was injured while working for DE Valley Field Services and that injury was witnessed by his boss.
• He was deported to Honduras in March 2011.
• Both Dr. Rudin locally and Dr. Alvarez in Honduras deemed him totally disabled and in need of lumbar spine surgery.
The IAB awarded benefits and rejected the forfeiture arguments offered by the employer. An appeal followed yielding our case of first impression that is commanding national attention. What were the forfeiture arguments and how were they addressed?
• The contract of employment is void and unenforceable and as such, the claimant cannot be covered by the Act. The Cliff Notes reply to this argument was that our statute does not exclude illegals in the definition of employee, the 1986 Immigration Reform and Control Act does not trump state law, and if you look at Connecticut, Ohio, Michigan and the District of Columbia, to name a few, they include illegals under the umbrella of work comp entitlement.
• Air Mod v. Newton, 215 A. 2d 434 (Del. 1965) and the concept of fraud in the inducement does not apply because the claimant did not misrepresent his physical condition, and there is no causal link between the injury sustained and the false allegation regarding alien status.
• Our "forfeiture due to incarceration" statute, Section 2353(d) is a clever proffer which does not hold up when given literal application. Of all the arguments advanced for the employer, I like this one the best because if analogy were to carry the day, it's a pretty good litmus test. For our intents and purposes locally, claimant might as well be in jail. He cannot work in the U.S., he cannot submit to a defense medical evaluation in the U.S., he cannot be surveilled in the U.S. and his medical providers elsewhere are not subject to the jurisdiction of the DE Work Comp Health Care Practice Guidelines. Holy cow! This is a carrier's nightmare and a defense counsel's conundrum. Bottom line is he is not in jail, we give our statute literal meaning, and as my younger daughter likes to say "this sucks for you". (Can't say I ever thought of Honduras as "the land
• The final argument presented by the employer was the "failure/refusal to submit to a defense medical evaluation" forfeiture pursuant to 19 Del. Code Section 2343(b). As with the incarceration argument, this one also fell on its face. Claimant has not refused a DME. He simply cannot lawfully attend a DME in the U.S., compelling the employer to find a Honduran defense medical expert (and I am the only one who finds this a "LMAO" proposition?)
This case was Jessica Welch's baby, on behalf of Senor Ramirez and illegals everywhere. Te felicito, Jess! Robert Richter is appealing on behalf of the employer, so we have something to look forward to from our Supreme Court (for me, another reason to blog). I am thinking that just about now one can hear the insurance company's reaction to this decision: "No hombre!! Que barbaridad!"
Irreverently yours,Cassandra Roberts , a/k/a Sassy Cassy
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Yes, it sucks. We in Texas have been dealing with this for ever. Welcome aboard.
On the other hand, there would never be a house built, or a dish washed in many restaurants, among other tasks, if our Texas employers were not hiring people with questionable (or no) documentation. Our insureds hire them. They are injured in the course and scope furthering the affairs of our insured. The carriers wrote the business. We owe the claims.