He's illegal, is he entitled to Comp?

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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Implications of a positive drug screen

Okay, so your worker got his hand caught in the machine, you've sent him for medical treatment, investigated the accident and spoken with the co-employees to confirm that the machine didn't malfunction. When you've considered all of the factors, the occurrence seems explainable only by the injured Worker's own inattention or worse. By this time, you may already have evidence that the employee seemed intoxicated/stoned or just "out of it." Again, your quick action in sending your injured worker for medical treatment may be the best action you could have taken to develop the contemporaneous medical proof that the injured worker's faculties were impaired at the time that the accident happened. Depending on your state statutory scheme, willful misconduct by intoxication may be a complete bar to recovery of income or medical treatment (as is the case in Georgia) or may limit the compensation for non-medical benefits (Colorado) so presenting evidence of impairment may not only save your workers' compensation experience rating and dollars but also help to defend you when OSHA comes calling. Limiting our discussion to Georgia, immediate medical treatment is shown to be absolutely essential as drug and alcohol testing must be conducted within the statutory timeframe. For alcohol, the blood sample must be obtained within three hours of the injury. For drugs (illicit drugs or prescription drugs not taken in compliance with a prescription to that specific injured employee) a blood or urine test must be obtained within 8 hours of the injury. With these time frames it's clear that allowing the employee to refuse medical attention and go home (even with a pink slip In hand) may work to your disadvantage. You should take care, then, to make sure at the employee actually attends the initial appointment at the ER or at the nearest occupational medicine center by having a supervisor or other management representative take the employee to the doctor. This would avoid the later discovered problem of the employee who supposedly grew tired of waiting in the ER or who detoured home first to have a drink or"light up" due to the pain from the injury. Most medical providers will obtain drug screens at your request and most have sufficient chain of custody procedures in place to assure that the sample obtain is the sample tested and reported back to you. If your medical provider does not do drug testing or does not have chain of custody procedures, get a new provider. It might help to guarantee that provider that the initial testing and treatment will be covered and that they should check with you after a positive alcohol or drug test. This gets you the information that you need and helps to build a positive working relationship with your medical providers.
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Machine defects and subrogation

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In the last post we were investigating a hand injury from entrapment on a conveyor belt. One of the possibilities discussed was a machine malfunction or defect. First things first, this is not the fault of the employee so your initial impulse to provide medical treatment without regard to liability has been vindicated and your employee has not been left to his own devices or to the tender mercies of his TV attorney. Your quick work on investigation has also preserved the evidence that you will need for your Subrogation claim. State laws will vary on how you can protect your Subrogation interests but one thing is certain, you have to protect your own interests. Expecting the injured worker's attorney to remember all of your cooperation and assistance when it comes time to pay your Subrogation lien is about as wise and reliable as the promises of a Fraternity Boy on a Friday night. Prepare your file, protect your own interests. Besides, if a machine malfunction has injured on of your workers, that machine malfunction has cost you money. Under many state statutory schemes your Subrogation interest can only be recovered AFTER the injured worker has been made whole. The question of when an injured worker is "made whole", is a subjective concept that can be easily defeated if you have not acted quickly to assert then protect your own interests. The questions that will need to be asked: 1)what is the defect or the problem? Is it a design defect that allowed the injury to happen, a safety defect that did not act to stop the machine from moving when a certain action was taken (for example the pinch point was behind machine guards which, when opened should have automatically stopped the machine) 2) how old is the machine - if the machine is too old any action to recover could be barred by a statute of repose. 3) was there some act or practice by your employees that circumvented the safety devices that led to the injury. If this is the case, the fault , and therefore the expense of the claim, are likely yours alone. In such a case, your investigation should have revealed when this circumvention occurred, by whose hand and whether there was any actual or tacit permission for it to have occurred. If your supervisory staff knew or should have known that safety devices were being deliberately circumvented, your problem is not with the injured worker but with your supervisory staff. A timely termination here of the responsible supervisor would not only be good policy but might help convince the injured worker and his co-employees that the injury is not okay with you and that you intend, going forward to properly protect your employees.

Quick and accurate investigation

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Now that you've taken care of your injured Worker's immediate medical needs, what next? You need to find out what happened. Remember, workers' compensation is a no fault system. Neither the injured Worker's negligence nor that of the co-employee is the point of the investigation. We're not looking to place blame, we need to know what happened, how it happened and how this injury could have been prevented. To be sure, accidents happen and sometimes they are not preventable. A proper root cause analysis of most industrial accidents can show where things went wrong and allow the employer and the employees to know where the flaws in the process might be. To illustrate, let's investigate a hand injury from entrapment on a conveyor belt. Is the scene maintained? If the machine is already cleaned and back in operation, there's little chance that your investigation is going to produce anything but an educated guess so early investigation of the scene of the accident as it appeared as close to the injury as possible is optimum. Photographic evidence may be helpful and should be encouraged wherever possible. After checking out WHERE the injury happened, talking with the eyewitnesses is next. Getting essential information (names, nicknames, phone numbers and email addresses) about all possible witnesses will help you, your insurance carrier and, in the God forbid scenario, your attorney locate these witnesses in the future. You should be prepared to provide names, home addresses, email and phone contacts to anyone investigating the injury on your behalf. Witness statements are a good idea as they provide contemporaneous information as to what happened in the witness' own words, in the witness' own hand as a buffer not only against fading memory but also against changing stories. If possible witnesses should be interviewed separately in order to preserve the integrity of each witness' recollection without worry of contamination of one witness' story by another. When the witnesses have been interviewed and the scene reviewed, what conclusions can be drawn? Was the injured worker careless or for some reason distracted? Did the machine malfunction or was there some other defect in the machine that led to the incident? Was the injured worker impaired? We'll discuss each of these scenarios in subsequent postings.