N.Y. 3rd: Illegal Aliens Do Not Qualify for 'Additional Compensation'

Saturday, June 30, 2007 | 0

By Larry Rogak

Ronnie Ramroop v. Flexo-Craft Printing et al., No. 501026 (decided 6/21/07) (3d Dept 2007)

In a decision which may be one of first impression, the Appellate Division has held that an illegal alien who is injured on the job does not qualify for "additional compensation" which is normally available to injured workers who lose more than half of the use of certain body parts.

After being injured in a work-related accident in 1995, the claimant was found to have sustained a 75% loss of use of his right hand and received a scheduled award. In 2002, the claimant asked that his case be reopened to determine whether he was entitled to "additional compensation" under Workers Compensation Law section 15(3)(v), which provides for additional compensation to claimants whose earning power is impaired by reason of a job-related loss of use of 50% or more of certain body parts, including a hand.

A workers compensation judge awarded the additional benefits, but the Workers Compensation Board reversed.

The Appellate Division held that, in order to qualify for section 15 (3)(v) benefits, the claimant must prove that his loss of earning capacity is caused "solely" by the injury. But here, "the Board quite properly found that because claimant was an undocumented alien, he was ineligible for employment in the United States, and thus his loss of earning capacity was not solely attributable to his compensable injury."

Comment: So far as I know, this is the first decision on this exact point. And when I say "exact point," I mean, the issue of whether an injured worker is eligible for "additional compensation, " after suffering a 50% or more loss of use a hand, if he is an undocumented alien.

All of the "illegal immigrant" cases have focused on the question of whether a plaintiff in a personal injury lawsuit may collect future lost wages, since by law he cannot work here legally.

In Hoffman Plastic Compounds v. NLRB (2002), the U.S. Supreme Court ruled that illegal aliens may not be awarded future lost wages. But in 2006 New York's Court of Appeals held in Balbuena v. IDR Realty, 6 N.Y.3d 338, that the Hoffman decision does not compel New York to deny future lost wages to illegal aliens in personal injury cases.

The Third Department's decision in Ramroop does not fall squarely under the decision in Balbuena because Ramroop is not a personal injury case, but instead involves an interpretation of the Workers Compensation Law.

So in summary, Ramroop is a case of first impression that carves out a new exception to the "additional compensation" provision of Workers Compensation Law section 15. As such, it is very significant.

Lawrence N. Rogak is an insurance defense attorney in New York. He writes The Rogak Report, a daily insurance law newsletter, and his insurance law articles appear in several industry publications. For more information see www.Rogak.com.

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