Illegal Aliens - What Should Their Right of Compensation Be?

Tuesday, August 5, 2008 | 2

Federal law prohibits illegal aliens from working in America. It is illegal for the alien to seek employment. It’s illegal for the employer to employ the alien. Nevertheless, even if an employer tries to avoid hiring an illegal alien, employers still find themselves having hired illegal aliens who have obtained Social Security numbers illegally.

Should illegal aliens be entitled to workers’ compensation if they are injured while employed?

Most states, including Illinois, require employers to pay compensation to injured illegal aliens. Under Illinois law, employers are definitely required to pay claims of illegal aliens. The question is how long does the employer have to pay. How does the employee’s illegal status effect the employer’s obligation to pay benefits? Obviously, the employer must pay reasonable
and necessary medical bills. Further, a claimant is entitled to TTD until he reaches MMI.

Claimants also have been awarded permanent partial disability despite their illegal status. The more complicated questions involve claimants who have not been given full duty releases but instead are released only for limited duty. Whether released for full duty or limited duty, the employer can’t bring the individual back to work. The employer would be violating federal law
by rehiring an illegal alien. However, is that illegally employed alien entitled to continued maintenance benefits while he looks for work? Is he entitled to wage differential benefits if his injury gives him permanent limitations so that he can’t return to work at his prior occupation.

Arguably, the employer should not be required to pay maintenance while that alien looks for work. The employer should not be required to pay wage differential. The illegal alien should never have been employed in the first place at the wage he was earning for the employer. He never had a legal right to the position. Therefore, there is no reasonable basis for awarding additional compensation in the form of wage differential benefits. We should be able to successfully argue that no wage differential benefits should be awarded to an illegal alien. It’s inconsistent with the fact that the illegal alien should never have been employed at the rate of pay he was earning. We should be able to successfully argue that an illegal alien is not entitled to maintenance once he reaches MMI.

The highest court in the State of New York, the Court of Appeals, recently addressed this issue and ruled in the favor of the employer. This ruling was issued in the case of Ronnie Ramroop v. Flexo-Kraft Printing, Inc., 2008 NY Int. 105 (filed 6/26/2008). In the Ramroop case, petitioner (an illegal alien) suffered a severe crushing injury involving his right hand on March 28, 1995.

The employer paid TTD until petitioner was at MMI and then 75% loss of use of the hand. Petitioner wasn’t satisfied with this award, and he filed a claim for additional compensation under New York law. Petitioner filed a claim seeking vocational services and additional compensation benefits because of his reduced wage earning capacity. The Workers’ Compensation Law Judge awarded benefits, but the Workers’ Compensation Board reversed.

Petitioner appealed all the way up to the Court of Appeals and the Court sustained the denial of additional compensation. The Court of Appeals ruled that petitioner was not entitled to additional compensation because he couldn’t prove that his wageearning
capacity was diminished solely due to the compensable injury he sustained.

The court held, “Because the claimant was ineligible for work in the United States, claimant did not and could not participate in a ‘board-approved rehabilitation program.’ Moreover, even if we assume that claimant cooperates to the extent he could, his
inability to participate was not because rehabilitation was not feasible – the Board never made a feasibility determination – but because no rehabilitation program is available to those who are not legally employable.”

The court went on to state:

“This appeal puts into clear focus the tension between the statute’s vocational rehabilitation objective to return an injured worker to the marketplace, and the reemployment of a worker, as in this case, who is not authorized to so participate in the first instance . . . . Simply put, it cannot have been the legislature’s goal to ‘restore … to reemployment’ a worker who may not be lawfully employed.
 
Reversal of the appellate division order would not only promote such restoration, it would effectively place the instant claimant, and others similarly situated, in a more favorable position than claimants who must meet all statutory requirements.”

This issue should not be a difficult one for the Commission or the courts. The courts will not want to reward employers who improperly hire illegal aliens. However, an adverse decision to employers who unwittingly hire an illegal alien is simply wrong. Courts must err on the side of employers. An employer may or may not know whether an employee is illegal. However, the
employee definitely knows whether or not he is illegal when applying for employment. A decision against employers encourages illegal aliens to seek employment and file false claims.

Since the illegal has no prospect of ever being reemployed once his illegal status is discovered, he can seek excessive care and be set for life if he can get permanent restrictions. This cannot be what the legislature intends.

Michael Rusin is a partner in the Chicago law firm of Rusin, Maciorowski Friedman. This column was reprinted from the firm's newsletter with his permission.