Thread: Judge raises issue of injury benefits for immigrants

http://www.tucsoncitizen.com/daily/local/22618.php

Judge raises issue of injury benefits for immigrants
PAUL DAVENPORT
Published: 08.14.2006
PHOENIX - The state's leading workers' compensation insurer says it will ask the Arizona Supreme Court to review a lower court judge's assertion that an injured worker's benefits claim should have been denied because he's an illegal immigrant, not due to his medical circumstances.
The "special concurrence" which Judge Daniel Barker attached to a majority ruling by two other judges on a Court of Appeals panel is not legally binding on lower courts.
However, the State Compensation Fund is worried that Barker's position could lead to confusion over whether illegal immigrants are eligible for workers' compensation benefits and lead to employee lawsuits against employers over coverage, said Christa Severns, a spokeswoman for the quasi-public agency.
The Compensation Fund will ask the Supreme Court to erase Barker's concurrence or issue its own ruling on the issue, she said Monday. "We're asking for some clarification."
The fund, the state Industrial Commission - the state agency that oversees the workers' compensation system - and an association of lawyers who represent injured workers all argued that state law now makes illegal immigrants eligible for workers' compensation benefits.
The case involved a benefits claim by Jose Luis Gamez, a Mesa man who suffered a back injury in 2001 while lifting furniture while working for a furniture company. Gamez asked the Court of Appeals to overturn a 2003 decision that he wasn't eligible for permanent disability benefits.
During a deposition conducted as part of the case, Gamez acknowledged that he was an illegal immigrant using an alias, Mario G. Lopez, in order to work in the United States.
Barker's concurrence to the Court of Appeals ruling issued Thursday said that he agreed with his colleagues that Gamez's claim could be resolved based on his medical circumstance. However, the issue of whether illegal immigrants are eligible for workers' compensation benefits "is a matter of public importance and is likely to recur," Barker said.
The issue hinges on state law, originally enacted in 1925, that provides that employees eligible for benefits include "aliens and minors legally or illegally permitted to work for hire."
Barker said the Industrial Commission "is misapplying the statute" and that the Legislature intended that the law's "legally or illegally" wording applied only to minors and not to aliens. A specific reference to illegal immigrants would be necessary to make them eligible, he wrote.
"Even if there were no specific legislative intent to exclude undocumented immigrants, the policy choice of including undocumented immigrants in the definition of 'employee' requires affirmative legislative direction," Barker said.
In a brief filed on behalf of the Arizona Association of Lawyers for Injured Workers, attorney Roger Schwartz said state law now clearly makes illegal immigrants eligible for benefits and that it would take legislative action to exclude them.
"When the Arizona Legislature cares to make a specific exclusion, it certainly knows how to do so," Schwartz wrote.
Schwartz cited unsuccessful legislation proposed during the 2006 legislative session to deny eligibility to illegal immigrants. "If there is a problem here, it is a problem to be fixed by the Arizona Legislature, not by this court," he added.
The case is Gamez vs. Industrial Commission, 1 CA-IC-05-0069.additional information
ON THE WEB
Court of Appeals Division One: www.cofad1.state.az.us

I say make the employer who hired them pay for their medical care out of their own pocket and then deport the illegal and fine the company.

Dim, I agree with you!

illegal immigrants are eligible for workers' compensation benefits "is a matter of public importance and is likely to recur

Again, if the illegals weren't here in the first place, then they couldn't get hurt in this country! Just as they couldn't commit a crime (more than being here illegally), IF they were NOT here.