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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My Injured worker is an illegal alien. Do I have to pay him?

The title may sound harsh or deliberately charged so, stated another way, My injured worker is undocumented.  Do I have to pay him?    Well, as with most answers that you will get from an attorney, "it depends." 

First and foremost, ANY worker that you have in your employ that is injured in an accident arising out of an occurring in the course of his employ is entitled to medical treatment for his COMPENSABLE injuries.  That is not to say that claims of injury for which you have an otherwise viable defense are treated any differently.  On the contrary, Georgia law is perfectly clear on this point that based upon that person's presence and employment in Georgia, he is entitled to the equal protection of its laws.    That much was settled in 1993 in the case of Barge-Wagener Const. Co. v. Morales, 263 Ga. 190, 429 S.E.2d 671 (1993).  In that case, the Georgia Supreme Court invalidated a provision of the Georgia Workers' Compensation Act concerning payments made to dependents of workers who died as a result of compensable injuries in Georgia.  The statutory provision in question provided for lesser benefits to surviving dependents who did not reside in the United States.  Citing a decision from Florida, the Court held:

 

'[W]e do not perceive this case as hinging on the constitutional rights of the surviving dependents, but on the constitutional rights of the worker, now deceased.... This case concerns whether a worker who happens to have dependents residing out of the country is entitled to the same fruits of his or her labor as any other worker, including the same insurance benefits where the state has required those benefits to be provided. It thus is immaterial that petitioners happen to be nonresident aliens, since they have standing in this context as his beneficiaries.'

We should reach the same conclusion here in Georgia because, as was the case in Florida, the benefits in question were generated by the employee's labor and flowed through him to the intended beneficiaries, his dependents. We should recognize their standing to enforce the rights which Mr. Morales earned by his labor while resident in this country.

 

The bottom line is that the injured worker's presence in the United States that confers upon him  the right to enforce benefits for a compensable under Georgia Law.  Morales  extended standing to enforce rights conferred by Georgia Law to his surviving dependents, .  As well it should.   Employers should be encouraged and required to follow both Federal Immigration law and Georgia Workers' Compensation law by endeavoring to hire those eligible to work while at the same time protecting everyone they do hire.

In 2004, another run was made at the idea of disqualifying illegal/undocumented from the Georgia Workers' Compensation Act  in the case of Continental PET Technologies, Inc. v. Palacias, 269 Ga.App. 561, 604 S.E.2d 627 (2004).  In Palacias, the employer pointed to the requirements of the last great immigration solution, the Federal Immigration Reform and Control Act of 1986 (IRCA) in support of its position that the injury should not be covered.  Citing IRCA, the employer argued that Federal law prevented the knowing hire of illegal aliens/undocumented immigrants and prohibited the use of fraudulent documents to obtain employment.   The Employer argued that the terms of IRCA would preempt state law and thus render Ms. Palacias ineligible for employment and, by extension, workers' compensation benefits.  The Georgia Court of Appeals rejected the preemption challenge holding that IRCA was not intended to preempt state workers' compensation laws.    This holding was in line with decisions in other states such as Florida and Minnesota. 

The Employer's next argument was that Ms. Palacias perpetrated a fraud in presenting fake documents to get hired and that her fraud voided the employment contract from the beginning.  In essence the employer wanted the court to hold that Ms. Palacias was not an employee and, therefore not subject to coverage under the workers compensation act.  The Court rejected that argument holding that there was no causal connection between the misrepresentations and the injury. 

The Georgia Court rulings make sense when one considers not only the law, but also when one considers the implications of a different finding.  Were employers able to claim that compensation for medical treatment for an otherwise compensable injury can be denied with impunity if the injured worker happens to be illegal/undocumented, the incentives would then be for the employer to hire such illegal/undocumented workers and to treat them as a disposable commodity.  The problem would then NOT be solved,  but magnified. 

What about INCOME benefits though?  More on that tomorrow....


"Skedsvold, White & Wesley
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The Limits of Workers Compensation

In a January 15, 2013 post on www.InsuranceJournal.com there is a cursory mention of proposed legislation in Connecticut that would require coverage for PTSD to help first responders.  The need for such legislation, was suggested by the Newtown Board of Police Commissioners to help those suffering physical and emotional trauma "as a consequence of their heroic efforts" on the job.  By implication, this suggests that the current law in Connecticut does not, for one reason or another already provide for necessary protection for psychiatric problems or disability occasioned by on the job exposures.   Before rushing headlong into legislation to cover this or that condition, I wonder if any thought is given as to WHY current law does not cover it or the implications of the change.

Please do not misunderstand, I do not know what Connecticut law is and have  no familiarity with it to offer any criticism of the current law or the wisdom of seeking to change it.  My point is a larger one:  workers' compensation is a blunt instrument and not one well-suited for tailor-made solutions while running from one high profile crisis to another.  It seems that legislators are genetically predisposed towards the mindset that "there should be a law."  Less thought is given though as to the implications or the expense when a few extra lines are added to the State Labor and Industrial Relations act.  

What, might you ask, is the harm in providing protection when the need is so clearly demonstrated?  Well, consider that psychiatric disability is so poorly understood that the legal system is ill equipped to handle it.  If two medical experts can look at the same MRI and come to two different conclusions, can we hope for certainty or objectivity when there is no picture, no diagnostic test that all can see to demonstrate that this person has it and that one doesn't?    I am in no way suggesting that PTSD is not real, that depression is not disabling or that on-the-job exposures might lead to them.  I only suggest that they are so poorly understood that a little legislative humility might be in order and that maybe, just maybe, the workers' compensation system is not the best forum or the only forum in which these policy judgments can be worked out. 

As a statutory system, workers' compensation is designed to be applied by the numbers, by the book.  Each State Constitution has as its foundational principle that all of its citizens must be given equal protection under the law.  Can we truly say that is happening when a police officer or EMT is given treatment for PTSD after this horrific event in Newtown, Connecticutt but an officer who responds to a domestic abuse call or child abuse investigation is not?   The statute in question here will undoubtedly include both going forward and probably for the good.  However, in the rush to get this bill passed, is the larger tapestry of the workers' compensation system considered?  Is any consideration given as to why the system did not include this in the past?  There might be some wisdom in the existing system that gets lost when a high profile event drives our emotions out in front of reason.  I do not mean to suggest that this is the case with the bill in question but I would hope that legislators are mindful of the concept.

Many of us remember the horrible days of 9/11/2001 and were all caught up in the emotional rollercoaster that started that morning.  The outpouring of support both public and private was the least that those of us not directly involved in rescue, recovery and later salvage operations could do.  Each of the workers involved in those events will carry the scars and the honor of having been there and having performed so selflessly in circumstances which most of us can scarcely imagine.  Like them, the first responders in Newtown, have the thanks of a grateful nation for what they had to endure.    The question remains though, is the workers' compensation system the only forum or the best forum to express that gratitude?   Is a police offer responding to a single shooting of an adult any less traumatized by the event?  If PTSD was not considered an appropriate stand-alone diagnosis and the basis of a compensable workers' compensation claim in the past, is it just the agony of seeing the slaughter of innocents that compels the change?  Remember, the legislative change will apply to all going forward and we need to understand that once this pandora's box is opened cannot thereafter be closed to others deserving or otherwise.  How long will it take before this PTSD is applied to a termination for cause or to an unpleasant interaction between co-employees in which the business played no part? 

In 1996 floodwaters wreaked havoc in Albany, Georgia.  As sometimes happens in low lying and flood prone areas, caskets from a local cemetary worked their way up and into the floodwaters.  An employee of the city was given the unenviable task of retrieving the caskets and the bodies from the waters.  The effort left this poor man scarred.  His workers' compensation claim was, however, denied since he suffered no physical injury and instead soley psychic trauma.  Georgia's statutes do not provide for purely psychic trauma claims but do allow for psychiatric treatment when a physical injury is involved.    The Georgia Supreme Court declined to create a pure psychic trauma category even in this example when problems would be understandable, opting instead to leave that to the legislature.  Was the Court harsh?  Was the Workers' Compensation system or the Employer and its Insurer uncaring simply because the workers compensation system was not the proper forum?  What was lacking from the Supreme Court's opinion was the rest of the story.  As often happens, the full picture provides not only context but explanation and in some cases justification.  The Trial Judge in this case explained that psychiatric treatment was offered to this worker but as part of the Employer's Employee Assistance Program, outside of the Workers' Compensation system.  Was the employer less compassionate by providing that treatment outside of a system designed more for physical injuries and their treatment?  Sometimes, there is no appropriate remedy.  Sometimes the remedy lies elsewhere.   Workers' Compensation should not be the repository for every potential encounter, every potential injury.  It is still a statutory system that, if held to the language of the statute can be used to effecuate the purposes of the act but only if the respective legislatures act with deliberation, after due consideration of the practical consequences of their actions. 


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New accident

As with the "change of condition" concept, the idea of "new accident" seems obvious enough and yet, this concept, when paired with "change of condition" has produced more litigation than any other definitional concept outside of "arising out of and occurring in the course of employment.". As with change of condition, a new accident assumes the existence of a previous on the job injury. With this in mind, an old accident with which a new accident can be compared, the reasons and the implications become apparent. First, however, the reader must understand that the new accident concept encompasses not only an actual new incident but also a gradual (repetitive trauma) condition which produces a worsening of the employee's physical condition resulting in a "new accident" as of the date of the Employee's disability. This is commonly known as a "fictional new injury." We will discuss this more when the new accident concept is compared and contrasted with the idea of change of condition. If an injured worker has an existing claim, why bother with a new accident involving a change of condition? The answer can be as simple as the fact that a new accident might give the employee a higher compensation rate, restart the clock on the eligibility period for income benefits or even just to get to a new doctor when their choices for treatment under the old claim are less than satisfactory. The more complex answers also involve an attempt on the part of the employee to get around a statute of limitations problem on the old claim or an attempt by either the employee or the insurance carrier for the old claim attempting to shift the liability to a new insurance carrier or new employer. Motives may differ but the fact remains that if the employee or another party is attempting to establish a new accident date, there needs to be some evidence of worsening of the physical condition. Absent a worsening of the Employee's physical condition, there is no basis whatsoever for a finding of a new accident,fictional or otherwise. Remember though that "worsening" can be found even based only onthe Employee's complaints of increased pain.

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Change of Condition

Few phrases seem so clear and yet are so confusing as "change of condition." Part of the problem is that the phrase seems self-evident and yet, as used in the workers compensation context, means something that is certainly less than crystal clear. You see, in the workers compensation context, "change of condition" is a term of art. The definition is found within O.C.G.A. § 34-9-104.  In subsection (a) of that statute, the change of condition is defined as “A change in the wage earning capacity, physical condition, or status of an employee or other beneficiary covered by the Act which change of condition must have occurred after the date on which the wage earning capacity, physical condition, or status of the employee or other beneficiary was last established by Award or otherwise.”

The statutory definition contains a lot to consider so let’s break it down.  The change of condition is referred to as a change in the wage earning capacity of the employee, in other words the employee is seeking temporary total or temporary partial disability benefits.  If the change in condition is referring to the change in the physical condition, and the employee is seeking income benefits, then the the employee will seek to show that there is a physical worsening of his condition.  That physical worsening should be proven by the medical evidence.  The next change of condition refers to the status of the employee or beneficiary.  In this context, we are usually referring to the employment status of the injured worker such as a layoff or termination.  It is for this reason that an employee who is terminated from his employment may have an entitlement to income benefits.  Another type of change of condition in which the employee’s benefits are suspended is the WC-104 conversion.  It is in this example, the employee’s physical condition has not changed, his employment status has not changed but his income benefits are being converted from temporary total to temporary partial benefits based upon the legislative policy judgment that determines that this employee would be deemed to have undergone a change in his condition for the better after the expiration of the 52 consecutive or 78 aggregate weeks of benefits while on temporary total disability.

​The next and crucial portion of the change of condition statute refers to the previous determination of a wage earning capacity, physical condition or status established by Award or otherwise.  In other words, change of condition refers only to those cases in which an employee’s claim has been accepted as compensable and for which income benefits have been paid.  If no income benefits have been previously paid, then the claim by definition cannot constitute a change of condition.  The payment of medical benefits for any claim does not establish the employee’s condition by Award or otherwise and does not, therefore, provide the basis for a change of condition claim.  It is after the payment of income benefits that the employer admits that a compensable injury has occurred.  This is no small distinction and will determine the applicability of the various statutes of limitations that must be considered. After this decision on compensability the employee has the right to lifetime medical for that condition for so long as it relates to the original injury. Once income benefits have been paid, an employee can seek to have those income benefits restarted if he has had a physical or economic or economic change in his condition if the employee has restrictions related to the injury and if the request is filed within 2 years of the last payment of income benefits. We will cover this statute of limitations on change of condition claims in a subsequent post.



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