Monday, August 29, 2011

KY Rejects Ban on Benefits to Illegal Aliens

I was happy to see that the Kentucky Supreme Court on Thursday had the good sense to reject an employer's argument that an undocumented immigrant worker was not entitled to indemnity benefits. To have done otherwise would not only compromise the social safety net that has been established with workers' compensation, but would expose any unwitting but otherwise lawful employer of undocumented workers in that state to civil damages.

Before I get into the social pragmatism of the court's ruling, here's a quick primer on the case.

The case is Abel Verdon Construction v. Rivera, 2010-SC-000744-WC, 08/25/2011.

Miguel A. Rivera was 15 in July 2005 when he was hired to work part time cleaning up Verndon's construction site and carrying supplies for carpenters on a framing crew. A Verndon foreman testified that he had promised to pay Rivera $50 a day in cash.

Rivera had worked approximately five days when he fell through a hole in the roof of a two-story home and landed in the basement, causing severe head injuries that put him in a coma and landed him in the hospital for two months. Rivera returned to high school after recovering to take special education classes, but suffered "significant physical and mental impairments that were permanent," according to the court's opinion.

An administrative law judge found Rivera to be Verndon's employee and awarded benefits.

Verdon Construction appealed the decision, arguing that Rivera was not its employee, that the Constitution bars benefits to him because he is an illegal alien.

The Court of Appeals affirmed much of the judge's findings including that Rivera was entitled to benefits regardless of his illegal alien status.

"We do not view eligibility for workers' compensation benefits as being a realistic incentive for an individual to enter the United States unlawfully," the Kentucky Supreme Court said in its unanimous opinion. "Moreover, we view a decision to exclude unauthorized aliens from the application of Chapter 342 as contravening the purpose of the [Immigration Reform and Control Act of 1986] by providing a financial incentive for unscrupulous employers to hire unauthorized workers and engage in unsafe practices, leaving the burden of caring for injured workers and their dependents to the residents of the Commonwealth."

On Friday I posted about a Texas case where the employer decided to deny benefits until a civil suit for negligence landed on its doorsteps. I have to presume that Verdon would have the same sentiments as that Texas employer had a civil suit for negligence landed in the hands of Verdon's lawyers.

The one unwavering aspect of the social responsibility of our workers' compensation system is that if you work, you are protected - at least that's the concept. We have disagreements about whether in fact those concepts are upheld in specific case situations, but the overall basis of this system can not be dismantled through discrimination based on immigration status.

The flip side of the coin is immunity to civil suit. Verdon is not facing the unpleasantness of a difficult civil suit - especially going before a jury to explain why a 15 year old was placed in a dangerous situation that ultimately resulted in a coma and mental disabilities.

Kentucky joins the U.S. 5th Circuit Court of Appeals, and appellate courts in California, New York, Illinois, Kansas, Maryland, Connecticut, Georgia, Minnesota and Florida in upholding the protections of workers' compensation for undocumented workers.

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