Every litigation attorney develops his theory of the case and keys his presentation of the evidence to that narrative. Usually one attorney's theory of the case collides with the other side's theory at trial. This precise phenomenon occurred recently on one of my cases involving a worker who was legitimately injured but was able to return to work. This worker retained an excellent trial attorney who, in the process of submitting documentation to the State Board regarding his representation, had to let the Court know that his client did not have a valid social security number. When this information was presented to the employer, the accommodated duty work that the employee was then working had to come to an end. The employee requested that income benefits be commenced, but the employer declined, pointing out that the proximate cause of the Employee's lack of income was not the restrictions from his injury but the immigration status and the prohibition by the IRCA of 1986 for his continued employment.
Later, counsel for the injured worker requested income benefits when he produced a comprehensive list of employers with whom his client had applied unsuccessfully for work. Counsel argued that pursuant to the Georgia Supreme Court's opinion in Maloney v. Gordon County Farms and its corollary decision Moses v. Diamond Rug Mills he was entitled to income benefits. For a more complete discussion of these cases, see our previous posts such as http://www.blogger.com/blogger.g?blogID=1133353663305007639#editor/target=post;postID=7848834889193301083
The theories of the case were fully in conflict. Either this employee was ineligible for benefits because of his status (according to the employer) or he could potentially qualify when he had proven that he performed a diligent and unsuccessful job search thus entitling him to benefits. Both theories had the support of rulings from the Georgia Court of Appeals and the Georgia Supreme Court. Neither, however, could be harmonized with the other.
Maloney and Moses predate Palacias and Martines and neither anticipated that the injured worker had a legal impediment to the jobs which he might be seeking. Palacias and Martines, however both anticipated that the injured worker had restrictions which prevented full duty employment. What to do? The employee has ongoing restrictions and his employer cannot provide him with suitable employment. His employer won't pay for work not done and the employee either has been refused employment because of his injury or the employee has looked far and wide for a job with no results. Maloney and Moses would require the employer to pay him income benefits as the Administrative Law Judge could find a diligent and sincere effort was made to find a job. For his part, the employer cannot return the employee to work without violating Federal Immigration laws. Remember, the Court in Martines stated "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."
In our case, the State Board declined to reach the question of whether the employee was unable to "meaningfully accept" preferred employment as the job search which he did perform was found to be deficient. Sooner or later, the question will need to be addressed directly. If the Court's ruling in Martines is any guide, the answer seems likely to be resolved in favor of the Employer.
"Skedsvold, White & Wesley
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