State courts have taken up the issue of whether undocumented immigrants can receive workers’ comp benefits. For the most part, courts have answered that question, “Yes.” But, there are all sorts of specific situations in these cases that courts are still looking at, including, what if the worker leaves the U.S.?
Odilon Visoso, an undocumented worker, was injured in the course and scope of his employment with Cargill Meat Solutions in Schuyler, NE. A 200-pound quarter of beef fell off an overhead conveyor and struck Visoso on the head.
He had neck surgery.
Shortly after his surgery, he was fired by Cargill when it discovered he was an undocumented immigrant not authorized to work in the U.S.
The Workers’ Compensation Court (WCC) found Visoso suffered a compensable injury and awarded him temporary total disability benefits. The Nebraska Court of Appeals affirmed that ruling.
Almost five years after his injury, Cargill petitioned the WCC for modification of the award because it was determined Visoso reached maximum medical improvement. However, Visoso denied his disability had decreased and argued that he should continue to receive benefits.
The two sides agreed a vocational rehabilitation counselor would prepare a report on Visoso’s loss of earning capacity.
In the meantime, Visoso returned to Mexico.
That’s when things got complicated.
Earning capacity for U.S. or Mexico?
The counselor said she could not obtain information about the rural region in Mexico where Visoso went to live to determine his loss of earning capacity in that area. She did prepare a report based on his situation in Schuyler, NE.
The WCC found the evidence was insufficient to quantify Visoso’s loss of earning power to award permanent disability benefits and that Cargill owed no further liability to Visoso.
Visoso appealed, and now the Nebraska Supreme Court has weighed in on the matter.
The state’s highest court noted that it had recently ruled the Nebraska workers’ comp law didn’t prohibit an award of benefits to an undocumented immigrant for permanent disability. So that was not the issue.
The question is what, if any, permanent disability payments Cargill should pay to Visoso based on his loss of earning potential.
The Nebraska Supreme Court had ruled previously that either the community where the injury occurred or the community where the employee has moved can serve as the “hub” community to establish loss of earning power, if the worker’s move was in good faith.
The court determined Visoso had moved in good faith. Therefore, it remanded the case back to the WCC to allow Visoso to attempt to establish that he should receive permanent impairment benefits. Given the nature of his injuries, it appears likely now that Visoso will get at least some workers’ comp benefits.
The court said allowing companies to not provide workers’ comp benefits to undocumented workers would set up an undesirable situation:
“Allowing an undocumented worker to establish loss of earning capacity based on data where the injury occurred reduces the incentive to hire undocumented workers so as to avoid paying workers’ compensation benefits. If an employer were able to end its obligation to the impaired worker because no reliable data existed in the undocumented worker’s country of origin, employers would be encouraged to hire undocumented workers to avoid paying workers’ compensation benefits.”
What do you think about the court’s decision? Let us know in the comments below.
(Visoso v. Cargill Meat Solutions, Supreme Court of NE, No. S-12-038, 2/22/13)