Applicant Immigration Status Saves Employer From TTD
What happens when federal immigration laws overlap with California workers’ compensation? A blog post, that’s what! Let’s say an injured worker is evaluated by her physician who provides work restrictions. The physician notes that, if the employer can not find work for applicant within his prescribed restrictions, the applicant is to be considered temporarily totally disabled.
The employer has a job waiting for applicant well within the doctor’s restrictions, but then comes the hiccup – applicant is an illegal immigrant and has no documentation of her right to work in the United States.
At trial the applicant’s attorney argues that no work is available for applicant, so she is entitled to TTD. Defendant, of course, argues that it is ready and willing, but barred by federal law and applicant’s own actions in refusing to comply with United States immigration laws.
These are the facts of Sarahi Cubedo v. Leemar Enterprises, Inc. (a 2011 panel decision). The Cubedo panel reversed the Workers’ Compensation Judge, ruling that if “defendant made a legitimate offer of modified work that applicant could not accept solely because of her residency status, defendant is not alternatively liable for temporary total disability benefits.”
In so ruling, the Workers’ Compensation Appeals Board relied on the case of Del Taco v. Workers’ Compensation Appeals Board (Jorge Gutierrez), which held that, with regards to entitlement to vocational rehabilitation services, if immigration status is the only bar to an applicant’s return to work, the injured worker is not entitled to vocational rehabilitation.
Once in a while, your humble blogger likes to report on the further developments of Labor Code section 4658(d). If a worker’s immigration status prevents him or her from accepting an employer’s timely offer to return to the same, modified or original duty, will the employer still receive the benefit of a 15% decrease in permanent disability payments? Or will the section just be held inapplicable?
If you’ve dealt with this and have a story to tell, don’t hesitate to drop your ever-attentive blogger a line: gregory@grinberglawoffice.com.
Greg,
Aside from the issue of benefits available to an illegal immigrant who is hurt at their job, I am curious what happens to the employer who knowingly hired the person in the first place? Just curious.
Steve, I’m not sure – there is probably some form of selective federal investigation and prosecution, perhaps including fines. But a person’s threshold for fraud is a subjective factor – someone willing to lie on a job application may not be willing to lie under oath.