Our post yesterday asked the question whether someone who is illegal/undocumented is entitled to workers compensation benefits. The quick answer is that illegal/undocumented status, standing alone does nothing to render an injured worker ineligible for medical benefits. So far so good. But what about income benefits? Again, standing alone, the illegal/undocumented status doesn't answer the question and, again, it depends.
For the sake of this discussion, we will assume that our hypothetical worker sustained a compensable injury and that there are no wilfull misconduct, statute of limitations or other defenses to the claim as a whole. The question comes down to the injured worker's physical capacity after the injury. If the injured worker, illegal or otherwise, has no restrictions related to an on the job injury then that worker is not entitled to Temporary Total or Temporary Partial (sometimes known as Indemnity or income) benefits. If, on the other hand, the injured worker is completely unable to work, then that injured worker, whether legal or illegal, is entitled to Temporary Total Disability Benefits. The harder question is what does an employer owe to an injured worker who can work within a restricted duty capacity. Even in this narrow area, IT DEPENDS. Let us discuss a few permutations:
1) Employer KNOWINGLY hires illegal/undocumentated worker who subsequently has an injury: The State Board of Workers' Compensation is a court of limited and statutory definition. That means that the SBWC is not a court of equity. While the SBWC has no powers to mete out fairness, the Board and its judges do have a sense of karma and you can bet your lungs that any employer who hires illegals/undocumenteds in the hopes of saving money on a later worker's compensation claim is in for a most inhospitable reception. Recommendation? Don't try that.
2) Employer UNKNOWINGLY hires illegal/undocumented worker who subsequently has an injury. If the employee is immediately released to return to work with restrictions then the employer has no obligation to immediately commence income benefits if the employer can provide employment suitable to the employee's restricted capacity. But, if you read yesterday's post or have paid attention to the various iterations of Federal Immigration law, you know that since 1986 Employers may not knowingly hire illegal/undocumented workers. How then, does this work? By the way, the cynical among us are already thinking "hey, wait a minute, how is it that yesterday the employer didn't know and today he does?" It's a fair question with a couple of answers. Either the employer did know (in which case see #1) or something tipped them off. That something can be a medical report in which the status is mentioned, a medical bill with N/A listed for the social security number or a notice of representation from an attorney who is prohibited from filing WC claims using a fraudulent social security number. It does happen that an employer is tipped off after the fact but the Employer better be prepared to prove the sequence of events or that employer will find an unsympathetic ear on the bench. If the employer really didn't know, and that employer can provide the employee with suitable accomodated duty employment BUT FOR the employee's illegal/undocumented status, then the Employer can successfully assert that the proximate cause of the injured worker's unemployed status is NOT the restrictions from his on the job injury but instead the employee's immigration status.
The Georgia Court of Appeals considered a situation CLOSE to this in Earth
First Grading & Builders Ins. Group/Ass'n Services, Inc. v.
Gutierrez. 270 Ga.App. 328, 606 S.E.2d
332
(2004). In that case though, the Employer tried to argue that the employee's illegal status rendered him ineligible for income benefits by virtue of IRCA of 1986. You will recall that the Georgia Supreme Court already rejected that argument in the Continental Pet v. Palacias decision earlier in 2004. The Employer argued though that Mr. Gutierrez was ineligble for the income benefits since his illegal status rendered him unable to "meaningfully accept" any employment. That argument gets close to the heart of the matter but, unfortunately the Court declined to reach that issue as the Court pointed out that the Employer did not even know if the illegal status until long after the period for which Mr. Gutierrez was seeking benefits.
The next closest decision on the question came 2 years later in the case of Martines v. Worley
& Sons Const., 278
Ga.App. 26, 628 S.E.2d 113 (2006). In Martines, the Employee sustained a compensable injury and income benefits were paid to him. The Employer wanted to suspend his income benefits by returning him to work. The Court's opinin recounts: "His employer offered him a position as a delivery truck driver, a job falling
within the restrictions set by his physician. He agreed to accept the job, and
reported to work. Before allowing him to drive a company truck, however, his
employer asked him to show a driver's license and documentation that he was in
the country legally. At that time, he revealed that he could not produce a
Georgia driver's license and could not obtain one because, as all parties
concede, he entered this country illegally. No
evidence was presented that he is unable to drive for any physical or
health-related reason or that he does not possess the ability to operate the
vehicle." The Employer followed the statute and the rules in tendering the job to the employee and the Employee could not produce the required documentation or driver's license. What then to do? The Court cited its decision in Gutierrez, especially the "meaningfully accept" language and decided that Mr. Martines was not entitled to a continuation of his income benefits. The Court held "Under these circumstances, declaring illegal immigration status to be a basis
for justified refusal of employment under OCGA § 34-9-240 would allow an employee already receiving
benefits to refuse any proffered employment on the basis of his legal
inability to perform the work. "
Notice here, that the Court gave neither side a get out of jail free card. It did not leave the injured worker unprotected by holding him forever and ever ineligible for income benefits. Neither did the Court provide a free pass to some unscrupulous employer in search of low cost and disposable employees.
Bottom line: Employer's do your homework and get the documentation for your employees BEFORE you hire them. Get the required I-9 form and photo Identification and maintain the records. If possible, use the E-Verify System. Whatever you do, standardize your practice, keep the records and treat your employees fairly. Another important tip not discussed , but assumed, in these cases is to keep control of the medical treatment. Georgia law provides for Employer control of medical if the Panel of Physicians is properly composed, properly posted and properly explained to the employees. Had the Employers in Gutierrez or Martines not provided medical care to the workers, these employers might have had less opportunity to consider accomodated duty as the employee's choice of physician might very well have been less receptive to the concept.
Next up: What happens when Martines v. Worley & Sons collides with Maloney v. Gordon County Farms and its allowance for an injured worker to get back on income benefits if he is unable to find employment suitable to his restrictions.
"Skedsvold, White & Wesley
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