Thread: Illegal Immigrant Injured on the Job Sues for Lost Wages, Benefits He Shouldn’t Have

Illegal Immigrant Injured on the Job Sues for Lost Wages, Benefits He Shouldn’t Have Been Getting



by WARNER TODD HUSTON
5 Feb 2016
Indianapolis, IN

An illegal immigrant, who was permanently injured on the job in Indianapolis, is suing to recover the wages and other benefits he lost after his injury, even though, as an undocumented worker, he shouldn’t even have been employed.

Court documents say Noe Escamilla slipped and fell in 2010 while trying to lifting a heavy piece of stone at Wabash College in Crawfordsville, Indiana, and now, according to doctors, he can’t lift more than 20 pounds. Escamilla is suing the Indianapolis-based construction and maintenance company Shiel Sexton Co., saying his injuries now prevent him from earning a living.

The 29-year-old Escamilla already tried to take his claims to court once, but a Montgomery County Superior Court judge ruled that, because he is an undocumented worker, he could not claim the money and benefits. The judge based her decision in part on the fact that Escamilla violated federal law by misrepresenting his immigration status on his job application.

He is now taking his case to the Indiana Court of Appeals to reverse Judge Heather Dennison’s ruling denying his claims.

KHOU.com reports that investigators discovered that, in 2008 when he was hired by Masonry by Mohler, a subcontractor of Shiel Sexton, he gave them a stolen Social Security number belonging to someone living in California.

The company never verified the worker’s information when he was hired. He was on the job two years before he was injured. Further, since his injury, Escamilla was granted permanent residency status by Obama’s Department of Homeland Security in 2014.

Some experts claim neither of the companies Escamilla is associated with have any liability at all and the plaintiff has no grounds at all to sue.

Other experts have speculated Escamilla might prevail if he asks for the benefits and wages paid at the levels he would have earned in Mexico for similar work.

But Chad Staller, president of The Center for Forensic Economic Studies, told the Indy Star the scheme might not work and Escamilla would be better served to demand the full wages of an American citizen.

“Based upon all the factors in this matter, the earnings power of Mr. Escamilla based upon the Mexican peso may not accurately represent Mr. Escamilla’s future economic damages,” Staller told the paper.

The case has no precedent in Indiana and could be a banner decision for illegal immigrants.

If the case is adjudicated in Escamilla’s favor, workers who have no legal status could benefit greatly in future injury cases and such a decision would tend toward breaking down the rules preventing illegals from receiving benefits for which they currently do not qualify.

http://www.breitbart.com/big-governm...-been-getting/

Kristine Guerra, 11:19 p.m. EDT March 31, 2016

A divided Indiana Court of Appeals panel ruled against a Mexican man who is seeking to recover lost income after he was permanently injured at a construction job site in Crawfordsville.

Noe Escamilla, who moved to the United States illegally as a teenager, cannot present expert testimony on his future lost wages based on U.S. dollars, the appeals court ruled in a 2-1 decision issued Thursday.

The expert, in preparing her report on Escamilla's lost earnings, did not take into account his status as an undocumented immigrant and his risk of deportation, according to the opinion.

The appeals court upheld pretrial rulings by a Montgomery Superior Court judge, who decided last summer that because Escamilla could not legally work in the U.S., he could claim lost wages based only on what he would've made in Mexico, his home country. Judge Heather Dennison also ruled that the jury hearing Escamilla's case is entitled to know that he was an undocumented immigrant at the time of his December 2010 injury.

​Escamilla's case raises broader policy questions on whether undocumented immigrants who are injured on the job should be allowed to recover income that some say they cannot legally earn. But the appeals court shied away from "making sweeping pronouncements about the rights of immigrants" and instead narrowly decided only on what evidence should and should not be presented to the jury.

Born in Mexico, Escamilla, 29, lived in Nevada and later in Indiana, working as a masonry laborer and using a Social Security number that belonged to someone else.

Escamilla was injured while working as a manual laborer for Masonry by Mohler, an Indianapolis company. He and other construction workers were lifting a heavy piece of stone at Wabash College. The back injury left him permanently unable to lift more than 20 pounds.

Court records say Masonry by Mohler neither verified Escamilla's immigration status nor checked his Social Security number, as federal law requires, until after Escamilla was injured. By then, he had been working there for two years.

Escamilla sued Masonry by Mohler's general contractor, Shiel Sexton Co., one of the largest construction managers in the state, to seek payment for medical expenses and to recover income he can no longer earn because of his injury.

In Indiana, employees receiving workers' compensation insurance give up the right to sue their employers in exchange for that insurance. So Escamilla cannot sue Masonry by Mohler, but he can sue the general contractor who is responsible for job site safety.

Shiel Sexton's attorney, John Mervilde, declined to comment on the ruling.

Escamilla's attorney, Timothy Devereux, said he intends to appeal the decision.

"If the ruling stands, we cannot have an expert testify what his future lost wage would be," Devereux said.

He also said that Escamilla, whose wife and three children are American citizens, is not at risk of being deported. Escamilla has applied to become a permanent resident, and he is eligible to obtain a work permit to work legally in the U.S. while his application is pending.

Devereux said he's disappointed that the ruling did not address the broader issue of whether an undocumented immigrant can recover damages for lost earnings and, if so, how those payments should be calculated.

In his dissenting opinion, appeals court Judge John Baker said evidence on Escamilla's immigration status is not relevant and would only provide a bad incentive to employers who hire undocumented immigrants.

"Because of the substantial difference between U.S. wages and those paid in neighboring countries, employers would know that they have a chance of paying substantially less in damages to an injured undocumented immigrant," Baker wrote.

Devereux agreed, saying he fears that evidence of Escamilla's undocumented status at the time of his injury would distract the jury from the real issue, given how strongly the public feels about immigration.

"Once you inject a person's immigration status, you're no longer talking about their injury, the result of their injury," Devereux said. "Suddenly, it becomes a tangential issue that has nothing to do with the fact of how they were injured. That's our fear."

Alexander Limontes, of the Indiana Trial Lawyers Association, said the ruling hurts Escamilla's chances of recovering any lost income.

"The jury is just going to look at him as another illegal," Limontes said. "All of a sudden, a case that should be about injuries and the negligence of someone ... becomes about immigration."

Escamilla has 30 days to either ask the appeals court to rehear the case or petition for the case to be transferred to the Indiana Supreme Court.

http://www.indystar.com/story/news/2...case/82468354/