Judge: Deported immigrant still entitled to workers' comp

by Sean O’Sullivan
The News Journal
Oct 25, 2012

WILMINGTON — An employee who is injured on the job – even if he or she is living in the country without legal permission and falsified paperwork to gain employment – is entitled to workers’ compensation, according to a first-of-its kind ruling in Delaware.

Attorneys for Delaware Valley Field Services, a company that does maintenance and property management on foreclosed homes for banks, are appealing the ruling to the Delaware Supreme Court.

Attorney Robert H. Richter, representing DVFS, said they “respectfully disagree with the decision.”

In his 29-page opinion, Herlihy noted it was a “case of first impression,” meaning Delaware courts have never before ruled on issues raised in this litigation.

The ruling sparked outrage among some, such as state House candidate Rich Collins, who called it “ridiculous,” and cheers from others, such as Maria Matos of the Wilmington Latin American Community Center, who said it is simply “the right thing to do.”

Attorney Molly DiBianca, who specializes in employment law and has a legal blog about the subject, said although it may sound unfair at first that an illegal immigrant can get workers’ compensation, the way Herlihy ruled is how other courts around the country have ruled.

“I’d have to side with the employee. The guy clearly got injured in the course of his employment ... so it is kind of nervy to say ‘We shouldn’t have to pay him,’ ” DiBianca said, adding it should be a lesson to all employers to be diligent in checking an employee’s immigration status upfront.

Temple law professor Jan Ting, who has long argued that a harder line should be taken on illegal immigration, said the decision in this case was correct. This case, he said, is about labor law not immigration law.

According to court papers, Ramirez illegally entered the United States sometime in November 2002 and began working for DVFS in April 2010 doing maintenance work on foreclosed homes. He was paid in cash until January 2011, when he started to receive a paycheck.

On Jan. 20, 2011, while on the job, Ramirez fell down a flight of stairs and severely injured his back – an accident witnessed by the company’s owner. Ramirez was rushed to the emergency room, and subsequently started treatment with a local doctor who classified Ramirez as “totally disabled” and said it was likely Ramirez would need surgery if other therapy failed.

On Jan. 31, 2011, according to court papers, Ramirez was informed that if he could not return to work, the insurance company would take over making payments to him and the company would need a social security number.

Ramirez obtained a bogus social security number from someone in Kennett Square, Pa., for $180, according to court papers, and gave it to his employer. A month later, DVFS learned from its payroll company the social security number was false, and contacted federal immigration officials.

Ramirez was deported in March 2011.

Ramirez, who testified via video to the Industrial Accident Board, admitted he was in the U.S. illegally and had lied when filling out a Delaware wage form and federal I-9 Employment Eligibility Verification Form.

But he claimed the company knew he was an undocumented worker. In his 29-page opinion, Judge Herlihy noted that the fact Ramirez was paid in cash for a number of months “raises suspicion of knowledge” by the employer.

Ramirez claims his doctor in Honduras has recommended surgery and he has no money to pay for the procedure.

DVFS owner Raymond Saccomandi testified he did not know Ramirez was an illegal immigrant and said had he known, he would not have hired him.

DVFS argues in court papers that because Ramirez lied about his status and lied on employment forms, that made his employment contract void and made him ineligible to receive any benefits.

Both Herlihy and the Industrial Accident Board ruled that while federal law bars illegal immigrants from receiving some benefits – such as unemployment compensation – it does not bar them from receiving workers’ compensation.

And while Ramirez supplied false information to his employer, Herlihy said those lies had nothing to do with Ramirez’s health or work history, and therefore did nothing to undermine his qualification for disability payments.

Finally, Herlihy ruled that from a policy perspective, workers’ compensation laws are designed to promote a safe, injury-free workplace. If illegal immigrants were barred from collecting workers’ compensation then “underhanded employers” might be prone to hire only illegal immigrants, wrote Herlihy.

State Rep. John Atkins, D- Millsboro, said the ruling is bad policy.

“[Ramirez] falsified his job application. He was here illegally,” Atkins said, adding that to allow illegal immigrants to collect benefits drives up the cost for other small businesses. “I think it is what is wrong with the whole system,” he said.

Atkins’ Republican challenger for the Delaware House, Rich Collins, also disagrees with the ruling.

“I don’t see how workers’ compensation promotes a safe workplace,” he said. “It is an after-the-fact program, just like auto insurance doesn’t make someone a safer driver.”

source: http://www.delawareonline.com/apps/p...nclick_check=1