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June 07, 2010
Workers' Comp for Illegal Immigrant?
A Louisiana pipefitter fell onto his back while welding on a ship's inclined wall. His pain gradually worsened until he was no longer able to work without undergoing back surgery. But his employer discovered he was an undocumented immigrant and stopped paying his medical expenses. He filed a claim for workers' compensation, which the employer fought.

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What happened. “Gomez” later testified that he had come to the U.S. in 1990, originally to Texas, but had then moved to Louisiana and worked at several jobs until he joined Bollinger Shipyards in March 2003. Bollinger paid some of his medical bills and extended temporary disability benefits to him for nearly 2 years. But by November 2005, the company had learned that Gomez had used a false Social Security number (SSN) to show that he was a U.S. citizen, which he is not.

Asked why it took the employer so long to determine that Gomez was working illegally, a manager testified that it usually waits until the end of the year to test SSNs with the Internal Revenue Service, and Gomez hadn’t worked there for a year when he had his accident. With all benefits halted, Gomez applied for help from benefits under the Longshore and Harbor Workers’ Compensation Act (LHWCA), which involved filing a claim with the Department of Labor’s Office of Workers’ Compensation Programs. An administrative law judge (ALJ) heard the case, with Bollinger arguing that even if Gomez could not perform light duties, he had no loss of earning capacity, because he was not eligible to work in the United States.

The ALJ ruled that Gomez was entitled to reimbursement for medical treatment, including back surgery, MRI testing, needed canes or braces, temporary total disability benefits from the date of the accident until he achieves maximum medical improvement, interest on all unpaid benefits, and attorneys’ fees. Bollinger appealed to the 5th Circuit, which covers Louisiana, Mississippi, and Texas.

What the court said. An undocumented immigrant seeking such benefits must not be threatened with deportation, which Gomez was not. Appellate judges also noted that LHWCA broadly defines the term ‘employee,’ and does not mention immigration status. Further, coverage is available under the law to nonresident aliens of the United States or Canada. So judges determined that Gomez is entitled to the benefits listed by the ALJ. Rodriguez v. Bollinger Shipyards, U.S. Court of Appeals for the 5th Circuit, No. 09-60095 (4/22/10).

Point to remember: A primary purpose of all workers’ compensation laws, including LHWCA, judges pointed out, is to substitute for individual plaintiffs’ lawsuits against employers when they are injured on the job.

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