Thread: Illegals Fighting for Worker's Compensation

The were 2 large articles in todays Miami Herald regading this. The first article: "Injured Workers Denied Care".

In a nut shell it states that illegals are abandoned by their employers and are without Workers Compensation.

http://www.miami.com/mld/miamiherald/bu ... 536672.htm

The second article is titled: "Immigrant Struggles for Rights".

This article is about an illegal suing for compensation after he was left partially disabled in a work place accident.

http://www.miami.com/mld/miamiherald/bu ... 536675.htm


This really makes me angry. The nerve of them to come here, work illegally and demand the same rights as American Citizens and legal Residents. What part of: you are illegal don't they understand?

This really makes me angry. The nerve of them to come here, work illegally and demand the same rights as American Citizens and legal Residents. What part of: you are illegal don't they understand?

someone high on the totem pole is allowing this to happen ...

Hispanic and foreign-born workers are hurt and killed in the American workplace at rates higher than other groups largely because so many of them work in dangerous industries that are hungry for cheap labor.

Perhaps if they learned English they could read all the safety manuals and wouldn't get hurt as often.

At any rate. To a certain degree I believe they should have some rights as workers. If they are injured they should be able to get workman's comp. However, 2 things should happen. First, as soon as the claim is made and they are identified as illegal, their employer should receive the maximum fine plus be subject to DOL and OSHA visits. Second, once the claim is settled, the illegal is immediately deported.

From what I have heard and seen, these people will work in unsafe environments that the rest of us would never work in. They are too afraid to complain as they are illegals and fear ICE would be notified. We have had several construction accidents where illegals were killed within the last year in South Florida. This resorts back to the benefits of cheap labor as it is a lot cheaper for them not having to follow safety rules not to mention not worry about workers compensation. It will be interesting to see if the results of the accident investigations reveal it. As for a comment made about manuals, in South Florida you can get most manuals in Spanish not to mention there is a large majority of Hispanics in construction here.
I do feel that as they are illegal they are taking a gamble and should not be entitled to compensation. Also many of them have been working here illegally for many years with no obvious intentions of becoming legal.

There is an inherent tension between state workers’ compensation law and federal immigration law with regard to the treatment of illegal aliens. State workers’ compensation laws are designed to, among other things, provide wage replacement for periods of disability due to workplace injury and promote return-to-work, in the worker’s former job, if possible.

On the other hand, under federal immigration law, illegal aliens cannot lawfully work in the United States, and employers cannot knowingly hire them. How then do we treat the illegal alien who nevertheless is working and suffers a workplace injury? Are they entitled to workers’ compensation benefits under state law? If so, can they receive such benefits consistent with federal law? If they can, does federal law still impact what benefits they may receive?

While a number of state courts have found illegal aliens entitled to workers compensation benefits, notwithstanding the IRCA, many highest state appeals courts have yet to address the issue. Many questions, as to exactly which benefits and what impact the IRCA may yet have, remain unresolved.

If you know any State Legislators, urge them to clarify the law so that illegals are clearly ineligible.

UB

I will definitely notify my state rep regarding this.

Moved to News Section.


Someone Please post the entire article as well before the paper removes it.

http://www.miami.com/mld/miamiherald/bu ... 536672.htm

Posted on Sun, Sep. 17, 2006

Injured workers denied care
Injured undocumented workers often find themselves abandoned by their employers and without workers compensation because of their illegal status.
BY LIZ CHANDLER
McClatchy News Service
Jose Hernandez was good with a machete. So he was the top choice when his boss needed someone to chop down young trees that were choking parts of Florida's Everglades.

On one trip to the swamps, the workers flew in by helicopter and quickly cut a stand of sprouting trees. But when they took off again, something went wrong: The chopper lurched left, then plunged into murky water in Coral Springs.

A broken rotor blade slashed through Hernandez's left thigh.

Doctors saved his life but couldn't save his leg.

To pay for his costly medical care, Hernandez filed a workers' compensation claim, which covered some of his bills.

Then, the insurance carrier, Florida Citrus, Business & Industries Fund, discovered that Hernandez was in America illegally, without work papers or permission from federal immigration officials. It halted all payments and left Hernandez to languish in a low-income nursing home in LaBelle, unable to work to support his wife and four children in Mexico.

Thousands of undocumented workers like Hernandez are hurt on the job every year in America, but don't get the compensation that's promised by law in every state.

Bosses often fire them, threaten them with deportation and commit an array of other misdeeds to avoid responsibility for workers' injuries. Some insurers refuse to pay their claims, citing reasons related to their illegal status.

As a result, injured workers often go without medical care or go to emergency rooms for treatment; taxpayers get stuck with the bills.

`A VIOLATION'

''It's a violation of the American spirit,'' said West Palm Beach lawyer Gerry Rosenthal, who represents Hernandez. ``Employers are hiring these people and pushing them hard to make a profit for the company, but when a worker gets hurt, they abandon him.''

From field hands to garment workers to construction crews, injuries abound in industries that rely on an estimated 7 million undocumented workers, often to do dirty and dangerous jobs. Yet those who are undocumented are frequently cheated out of benefits that American workers have taken for granted, a McClatchy News Service investigation has found.

Federal labor officials haven't studied whether undocumented workers are wrongfully being denied compensation. But the exploitation is rampant, according to interviews with scores of undocumented workers, employers, workers' comp lawyers, healthcare providers and workplace experts and a review of lawsuits and workers' comp claims.

In one national study, university researchers surveyed 2,660 day laborers, most of them working illegally. One in five said he'd suffered a work injury. Among those who were hurt in the last year, 54 percent said they didn't receive the medical care they needed, and only 6 percent got workers' comp benefits.

FEW BATTLES WON

Employers in at least 20 states, arguing that their employees shouldn't receive injury benefits because they're undocumented immigrants, have fought and lost in courts and review boards. Among those employees were a California laborer who hurt his back lifting sacks of coffee, an Arizona auto mechanic who was hit in the eye by flying debris and a North Carolina construction worker who suffered a brain injury when he fell 30 feet onto a concrete floor.

Juan Palacios, a 27-year-old husband and father from Guatemala, was working on the roof of a home outside West Palm Beach in March when a co-worker accidentally splashed hot tar on him. Palacios fell 12 feet and smashed through a glass table and onto a tile floor. He was hospitalized for a week.

During that time, he heard nothing from his boss at Sunrise Roofing, in West Palm Beach.

''They don't care about me,'' Palacios said. ``I feel bad because I can't work. . . That's why I'm here.''

Sunrise confirmed that it had employed Palacios, but its insurance carrier, the Insurance Company of the Americas of Bradenton has refused to pay. It won't discuss the denial but said in documents that ''there is no employee/employer'' relationship.

Palacios remains out of work. He's scarred and in need of skin grafts, he said. He relies on his roommates to feed and care for him, and he's received nothing from Sunrise.

DEATH RATES

The U.S. Department of Labor tracks workplace deaths and injuries, but officials haven't assessed how undocumented workers fare. The only hint is the climbing and disproportionate number of workplace deaths among Hispanic and foreign-born workers, which includes many of those who are working illegally.

Workplace safety programs also are failing these workers, as the number of inspections and the staffers to do them has declined. The nation's 2,300 inspectors check 1 percent of 7 million employers each year, and critics say fines are so low that risky operators consider them a cost of doing business.

''The regulators are rooted in paralysis,'' said insurance analyst Peter Rousmaniere, who has studied abuses of undocumented workers in a dozen states. ``They don't want to acknowledge these workers exist -- so, in effect, they are allowing them to be abused.''

Workers' compensation is regulated by the states, but most simply offer review boards to settle disputes. Few states look for abuses of undocumented workers, and some adopt regulations that freeze undocumented workers out of injury benefits.

Florida recently rejected hundreds of workers' comp claims because they didn't include Social Security numbers, a procedure the state Supreme Court halted last year because the requirement violated privacy laws.

A few states -- Florida, Michigan and Kansas -- allow employers to limit benefits or fine injured workers who use phony Social Security numbers.

''What you have is 20th-century legal principles trying to catch up with the 21st-century reality of a global workforce,'' said Bill Beardall, a lawyer and professor at the University of Texas at Austin.

``It takes time -- and persistent injustice -- for us to figure out that the old rules don't fit.''

Workers' compensation is intended to protect labor and management. The deal is employers pay for injured workers' medical treatment, partial wages, disabilities and deaths, and employees can't sue if they get hurt.

STATE REQUIREMENTS

Every state requires such benefits, except Texas, which last year passed California to lead the country in workplace deaths of Hispanics. Workers comp is optional in Texas, but companies must cover all employees -- legal and illegal -- if they opt for the insurance.

While some states exempt tiny businesses and certain agricultural and domestic workers, almost all other workers are promised protection.

But employers have incentives to cover up injuries. Accidents drive up insurance costs and can attract investigators. And intimidation tactics work best against employees who speak little English, don't know their rights and fear the threat of deportation.

''They are terrified of getting fired or being deported,'' said Nan Lashuay, an assistant clinical professor and occupational health expert at the University of California, San Francisco. ``There's a lot of pressure. Some of them have families who are literally on the verge of starvation . . . You can make here in a day what you make in a week in Mexico. And if you're deported, it can be extremely difficult to get back into the U.S.''

Examples of abuse are widespread:

• In Boston, when a Brazilian restaurant worker stabbed his hand with a knife, his supervisor, acting as translator, told doctors the injury happened at home, legal advocates said.

• At a Mississippi poultry plant, bosses questioned the immigration status -- then fired -- an undocumented employee after he sought medical treatment for injuries to both arms, according to the worker and his case manager.

• In Central Florida, a 15-year-old Guatemalan boy picking peppers was run over by a truck in the field, then dumped at a hospital 25 miles away with no name or contact information for his employer.

It's not unusual for bosses, known to workers only by nicknames and cellphone numbers, to abandon injured workers in unfamiliar areas without fear of reprisals.

''It's an ugly secret, and it's going on nationwide,'' said Texas lawyer Richard Pena, the chairman of the American Bar Association's immigration committee. ``The employers and insurance companies profit . . . [while] immigrant workers often go back to their home countries broken and in pain.''

Insurers say they don't track how many undocumented workers file for injury benefits or how many workers' families seek payment for deaths on the job. Most American companies take care of injured workers, employers say. They understand that the best way to keep productivity up and insurance premiums down is to run safe, responsible workplaces.

When someone is hurt, insurers say, they generally pay the claims, and immigration status doesn't arise. When it does, they interpret state injury laws conservatively.

CHEATING BOSSES

Some companies -- particularly in competitive and dangerous industries -- seek to gain an edge by hiring undocumented workers and then cheating them on pay and injury benefits.

''It's a toxic cocktail,'' said insurance analyst Rousmaniere. ``You have employers who have great incentive to cheat workers, and you have large numbers of illegal workers who will accept lower labor standards. It's causing our safety standards to erode -- and that hurts legal workers, too.''

One employers' trick is to go without workers' comp insurance.

Investigators say that kind of fraud is far more common than the much-publicized cases of workers who fake injuries. Offenders typically are small companies in high-risk pursuits, in which annual insurance premiums can cost 50 percent or more of a company's payroll. On average, companies pay about 1 percent of payroll toward premiums.

INSURANCE COSTS

Employers also lie on payroll records about their size and job risks to keep insurance costs down, which can leave workers without injury coverage.

It was the insurance company, not the boss, that blocked benefits for Jose Hernandez. Adjusters for Florida Citrus, Business & Industries Fund began digging into his background on the day he lost his leg to the helicopter blade.

They quizzed his employer, Linda Rojas.

What's his history?

What documents had he provided when he was hired?

''They kind of hounded me to say things about him that weren't up to par,'' Rojas recalled. But ``I wasn't going to say anything bad . . . He was an excellent employee.''

Within a week, adjusters phoned Rojas with a decision: ''We feel like he's an illegal alien, and we're going to use that to deny his claim,'' Rojas remembers the agent saying.

She didn't argue.

Rojas said she had mixed feelings. Hernandez deserved compensation because he was maimed for life, but she wasn't sure that an illegal worker should be entitled to benefits. So she left things to her insurer.

Florida Citrus declined to discuss the case, but in its denial, the insurer charged that Hernandez violated state law by making ''false'' or ''fraudulent'' statements about his identity.

When Rojas hired him, Hernandez presented a Social Security card he bought in North Carolina. He'd picked strawberries there, and before that, he'd planted shrubs in Kansas City, cut pines in Washington state and picked grapes in California, living and working in the United States periodically for more than a decade.

'The `false' statements Jose Hernandez made to get a job have nothing to do with his injury,'' said lawyer Rosenthal, of West Palm Beach. ``This man was almost killed working for an American company. Isn't it right to compensate him?''

Florida Citrus settled the case for an undisclosed amount, but Hernandez remains in the Florida nursing home getting treatment, waiting to return to Mexico. His girls are 3 and 6, the boys 10 and 12. He hasn't seen them in three years.

''The important thing is that some money is there to take care of us,'' said Hernandez, 36. ``I can't walk, but I'll keep trying to go forward. Thank God it didn't get my arm -- with my hands I can do anything.''

Rojas said she wasn't surprised when her insurer ''dropped us like a hot rock'' after Hernandez's injury. She paid double for a new policy and expects a price increase again this year.

She's not sure whether her company, Rojas Brothers Grove Service, can afford to stay open or find workers willing to wade into swamps to chop trees.

''Not everybody wants to do this kind of work,'' she said. ``They're going into swampy areas where you've got snakes and alligators . . . It's rough work.''


http://www.miami.com/mld/miamiherald/bu ... 536675.htm

Sun, Sep. 17, 2006

COURTS
Immigrant struggles for rights
An immigrant man's struggle to win compensation for a workplace accident that left him partly disabled takes six years to settle in court.
BY LIZ CHANDLER
McClatchy News Service
TAMPICO, Mexico - Injured immigrant struggles for workers rights

People throughout this Mexican port city tell stories of fathers, sons and husbands who went to America to make their fortunes.

The stories vary, but their essence is the same: There's a shadowy border crossing, the purchase of phony work papers, then gritty, grueling jobs that pay glorious amounts of money that almost immediately begins flowing back to this industrial region of 600,000 people.

But darker tales are also common: stories of men who came home battered and broken from doing America's dirty work. Men with no money, unable to work as they once did. Men who are burdens to the families they set out to support.

Hispanic and foreign-born workers are hurt and killed in the American workplace at rates higher than other groups largely because so many of them work in dangerous industries that are hungry for cheap labor.

U.S. workers' compensation laws require most American companies to pay for injured workers' medical treatment, lost wages, disabilities and deaths, even if the employees are working illegally. But some unprincipled employers abandon their immigrant laborers. And many of their workers, unaware of their rights and unwilling to fight for benefits for fear of being deported, go home to their families to heal their injuries.

Francisco Ruiz is a Tampico native who decided to stay in America and fight.

He was partially paralyzed and brain damaged when he fell 30 feet at a construction site near Charlotte, N.C. His employer, the Belk Masonry Co., and its insurer refused to pay injury benefits because Ruiz was an ``illegal alien.''

But Ruiz wouldn't go home disabled, with no money and no way to earn it, to a wife and three children who depended on him.

RAISING A FAMILY

Francisco Ruiz never expected to leave Tampico.

The son of a tailor, he quit school in the eighth grade to drive a taxi, sell tacos and keep the grounds at a cemetery.

At 19, he married and did well enough driving a truck to build a home for his family.

But when the Mexican economy stalled in the mid-1990s, Ruiz lost his job.

He was 36 on the day in July 1997 when he woke up thinking: ``There isn't enough for the children.''

When he got to North Carolina, Ruiz bought a Social Security card for $10. Soon, he was washing dishes at a sports bar, living with a friend and wiring money home.

Ruiz also sent home photos of himself looking thin but fit. On the back of one, he wrote to his 8-year-old daughter, Laura: ``To my little girl, the most tiny and beautiful and pretty and exquisite and cute and endearing and darling baby . . . I love you so much.''

On Aug. 21, 1997, Ruiz got a second job. The Belk Masonry Co. offered him $300 a week to work as a laborer for a masonry crew. The boss checked his work papers but didn't call Social Security to verify his number.

Ruiz worked 12 hours a day, from 8 to 5 in construction, then from 7 to 11 washing dishes and cooking.

The routine lasted six weeks.

Ruiz still remembers nothing about Oct. 7, 1997.

30-FOOT FALL

The insurer said a crane hoisting Ruiz along with a load of bricks collapsed. He plunged at least 30 feet onto a concrete floor and was pelted with falling bricks.

He broke a rib and injured a kidney, and his right lung collapsed. He also hit his head on the floor, severely injuring his brain's frontal lobe, which controls language, memory and motor function.

Ruiz was in a coma, able to breathe only with a ventilator.

His younger brother, Jose, left his wife, two young children and his job in Mexico and rushed to Charlotte.

Ruiz's wife followed, with a temporary pass to enter the country, leaving her three children behind. When she arrived at Carolinas Medical Center, she found the Virgin of Guadalupe medal in her husband's hand.

Nurses were hoping for a miracle, but at Belk Masonry, a counterattack had begun.

The Companion Property & Casualty Insurance Co. paid his initial medical bills, but adjusters wanted to know all about Francisco Ruiz. When they discovered his illegal work status, they rejected his claim.

The law in North Carolina, as in most states, says that undocumented immigrants who are hurt on the job are entitled to compensation. Companies, the law says, must pay injury benefits to ``every person engaged in employment . . . including aliens, and also minors, whether lawfully or unlawfully employed.''

But officials at Companion Property & Casualty questioned the law's intent. Why should they pay an alien who lied about his immigration status to get his job?

Ruiz woke up after 14 days. He couldn't speak, walk or use the bathroom. He didn't recognize his wife or remember that he had children. His wife and the therapists began telling him stories, showing him photos and moving his muscles.

UNABLE TO WORK

After two months in hospitals, doctors released Ruiz with orders for round-the-clock supervision. His wife had to return to their children in Tampico. So with his brother as his caretaker, Ruiz moved into a cramped apartment in Charlotte and began the most difficult stretch of his life.

Four months after his fall, Charlotte physician James McDeavitt declared that Francisco Ruiz had reached ''maximum medical improvement.'' He was permanently disabled and wasn't employable.

The state ordered Companion Property & Casualty to pay Ruiz two-thirds of his salary -- $200 a week -- while he was out of work and the dispute made its way to court.

For the next four years, Ruiz and his family survived on his $800 a month. Ruiz kept $100 for himself, paid his lawyer $200 and sent the rest home.

FIVE-YEAR WAIT

It took five years for the dispute to reach North Carolina's highest court.

Companion Property & Casualty lost the first round in 1999 and was ordered to pay Ruiz $200 a week for the remainder of his life, plus medical bills, plus the big-ticket cost of a caretaker earning at least $128 a day.

It would be ''repugnant,'' the court said, for a company that benefited from a worker's labor not to pay him for an injury. Whether the worker was illegal didn't matter.

Companion appealed.

A year passed.

Companion lost the second round in 2000, when the North Carolina Industrial Commission upheld the initial order.

The company appealed again.

Companion lost Round Three, too. The North Carolina Court of Appeals rejected the company's argument that federal law prohibiting undocumented immigrants from working in the United States nullified state laws that allow those workers to collect injury benefits.

The purpose of workers' compensation, the court said, ``is to compel industry to take care of its own wreckage.''

Companion appealed to the state Supreme Court. In 2002 -- five years after his battle began -- the court refused to review the appeals court's decision.

Ruiz had won.

It took another year to settle the case.

In the end, Ruiz got $438,000.

The company was disappointed, but not surprised, by the ruling.

''We're always viewed as the deep pocket,'' Companion's Potok said. ``If you're talking about paying somebody or cutting someone off cold, we typically lose.''