Thread: Settlement reached in day labor workers comp case

The Journal News.

Settlement reached in day laborer case
By ERNIE GARCIA
THE JOURNAL NEWS
(Original Publication: October 1, 2005)

A Yonkers Avenue day laborer who sued a Yonkers contractor over an alleged injury at the contractor's Queens construction site has reached a $125,000 settlement with his former boss.
Julio Castillo, 39, filed a $5 million civil suit in state Supreme Court in White Plains last year against Gaspare Pecorella of Rumsey Road for a 2001 fall from the third story of a building in Queens that left Castillo with a shattered left forearm.

Castillo's jury trial had been set for Sept. 12, but later that week, Castillo's and Pecorella's lawyers reached a settlement, which will be payable by mid-October.

Castillo's lawyer, Bruce E. Cohen of Rockville Centre, said a factor in accepting the settlement rather than having a jury trial was Castillo's immigration status.

"There are people who will more identify with Mr. Pecorella than with Mr. Castillo because you don't have undocumented people on the jury," said Cohen, adding that the jury pool also does not have many immigrants.

Castillo said he was initially unwilling to settle, but relented because he needs to return to Mexico to be with his elderly father and children. Castillo said his four-year effort to get reparations for his injury was a vindication for all immigrants.
"It's an example to all immigrants that this kind of accident should be recognized and acknowledged because it happened on the job," said Castillo.
Pecorella's lawyer did not return calls for comment, and no one answered the door at Pecorella's home.

The agreement came the same week a New York Appellate court released a decision requiring an employer to pay lost wages to a Polish illegal immigrant injured on the job. On Sept. 19 the court decided that federal immigration policy does not preempt a New York court's award of damages for lost wages to Stanislaw Majlinger, who allegedly fell from a scaffolding while installing siding.

The defendants in the case argued that Majlinger was not entitled to past and future lost wages because he broke federal immigration laws. The court's decision stated that withholding lost-wages rights from illegal immigrants "would create a perverse incentive for employers to hire such aliens."

I find this kind of case to be extremely complex when it comes to issues. Health and workmens compensation insurance are as big an incentive as wages for employers to cheat. Employees frequently goldbrick when workers comp is available. If you do not make employers liable for workers compensation the incentives are greater to hire illegals instead of citizens and legal immigrants.

I think that in this situation there should be a combination of workers compensation and punitive damages. The workers compensation should be set to wage scales in their country and the difference between the foreign and American wage set as punitive damages to be collected by the government.

This would create a powerful incentive for the government to find violators. With that for an approach this case would have produced about US $2,000,000 to search for additional crooked contractors. The worker got the compensation he would have in Mexico.

Another example of when to use common sense is wasted.
There shouldn't have been any rewards to the illegal worker. He should have been given medical attention and shipped back to his country. The contractor should have been liable for the medical expenses and had his contractor's license pulled for employing an illegal worker.

I view the employer as being as bad or worse than the immigrant. As it is with any other criminal procedure you get the menials to roll over on the higher ups. The illegal with an injury caused by the carelessness of an employer is a prime candidate. They should get something to make up for no longer being as able to earn an income. Their income expectancy however should be based on what their income would have been legally. Otherwise it is just too tempting to fake an injury. Their employers should not be able to get off with just that little in liability however. I am making a suggestion the difference go to the government.