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Nebraska’s Illegal Immigration News

080108 Employer told to pay illegal immigrant’s bills

Published Friday August 1, 2008
Employer told to pay illegal immigrant’s bills
BY CINDY GONZALEZ
WORLD-HERALD STAFF WRITER

German Andrade for about 15 years lifted, loaded and carried out other physically demanding jobs as an illegal immigrant.

Then came the bucket.

It crashed from a skid loader onto Andrade’s left foot at a landscaping work site. Fractures led to a lingering limp, which led to back problems and, said a judge, a 45 percent loss of earning capacity. At the time of the accident, Andrade, a husband and father in his early 30s, was earning $12 an hour.

Andrade’s case took a public twist when his Sarpy County employer balked at forking over injury-related workers’ compensation — and Andrade took the business to court.

Sun Valley Landscapes argued that because Andrade is an illegal immigrant, he was not covered by workers’ compensation benefits.

However, a three-judge review panel of the Nebraska Workers’ Compensation Court has disagreed.

In a ruling affirming a trial judge’s 2007 decision, the panel said that public policy favors the inclusion of illegal immigrants as covered “employees.” The judges ordered Sun Valley to cover Andrade’s medical bills and lost wages.

The ruling is believed to be Nebraska’s highest judicial review of the question of undocumented workers and job-related medical bills and wage loss compensation.

It also represents one of the rare times that both sides of the polarizing illegal immigration debate are on common ground.

Bryan Griffith of the Center for Immigration Studies said his organization — which opposes amnesty for illegal immigrants and favors more restrictive immigration policy — supports the panel’s decision. So does the Immigrant Rights Network of Nebraska and Iowa.

Griffith said shady employers would be more inclined to hire an exploitable, illegal work force at lower wages if they knew they weren’t going to be held accountable for workplace injuries.

If they hire a legal work force to begin with, none of this would be there,” Griffith said of the case.

It was unclear from court documents when Sun Valley learned Andrade was not authorized to be employed, although Andrade’s attorney said it was after he had worked a while for the business.

Norm Pflanz of the Nebraska Appleseed Center’s Immigrant Rights Network said the panel’s decision encourages safe work conditions overall.

If all workers were not covered under workers’ compensations laws,” he said, “it would diminish protection for all of us.”

Andrade’s attorney, John Corrigan, called the court’s order a win for the public as well as his client. He said the general public might be left picking up emergency medical tabs if injured illegal immigrants were deemed not to fall within the workers’ compensation statute.

Corrigan dispelled any notion that workers’ compensation is a “public benefit.”

The government doesn’t pay for it, employers pay for it,” he said. “It’s an insurance policy the employer buys.”

Glenn Morton, administrator of the Nebraska Workers’ Compensation Court, agreed. The state requires employers to carry workers’ compensation insurance, he said, or face criminal penalties.

The premiums are part of the employer’s cost of doing business,” he said.

John Iliff, the attorney for Sun Valley Landscapes and its insurance carrier, declined to comment or say whether an appeal was planned. A call to Sun Valley was not returned.

The July 23 decision by Judges Michael K. High, John R. Hoffert and Ronald L. Brown affirmed a 2007 ruling by Judge James R. Coe.

It ordered Sun Valley to pay $305 a week for 36 weeks for temporary disability and $144 a week for 263 weeks for lost earning capacity. The landscaping company also must cover $29,000 in medical bills and other related services that in the future may be necessary.

Corrigan said that since Nov. 9, 2004, when the bucket fell onto his client’s foot, Andrade has been unable to perform similarly demanding work.

The attorney said that Andrade is believed to still be in the Omaha area but was unavailable for comment.

Based on a previous Nebraska Supreme Court ruling on a more narrow slice of the Workers’ Compensation Act, the three-judge panel declined to award Andrade any retraining or vocational rehabilitation benefits.

Such a benefit to an unauthorized worker not on a path to become legal would be contrary, the panel wrote, to the statutory purpose of returning an injured employee to suitable employment.

Andrade, the judges noted, had been illegally in the country since 1988 and had “demonstrated no intent despite contrary testimony” to become an authorized worker in the U.S.

Corrigan said the Supreme Court in the past case had declined to address the broader questions of lost wages and medical bills for injured illegal immigrants. He said most employers and insurance companies don’t object to such coverage even for undocumented workers.

In arguing against awarding the benefits to Andrade, Sun Valley said his unlawful status made him legally unable to enter into a contract of employment.

To that, the court noted that the word “aliens” is expressly included in the state’s definition of employee. It said that by failing to modify the word aliens with the adjective “illegal” or “legal” and by failing to otherwise exclude illegal aliens, the Legislature intended to include illegal aliens within the Workers’ Compensation Act’s definition of employee.

Sun Valley also argued that Andrade should not be awarded loss of earning benefits because his illegal status is the inhibitor to him getting a job.

The court’s response: “If his capacity to work has been diminished, that disability will continue whether his future employment is in this country or his homeland.”

In their order, the three-judge panel wrote that the Nebraska Workers’ Compensation Act insures an employee against accidental injury at work and also protects the employer. Allowing such benefits to injured illegal workers may actually help achieve the goals of the 1986 federal law that bans companies from knowingly hiring an illegal work force, the panel said.

Without the protections of the statute,” the judges wrote, “unscrupulous employers could, and perhaps would, take advantage of this class of persons and engage in unsafe practices with no fear of retribution, secure in the knowledge that society would have to bear the cost of caring for these injured workers.”

• Contact the writer: 444-1224, cindy.gonzalez@owh.com

http://omaha.com/index.php?u_page=2798&u_sid=10395307

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