Court Rules Undocumented Worker Eligible for Workers’ Comp

In a July 2006 ruling, New York’s 3rd Appellate Division ruled that The Immigration Reform and Control Act (IRCA) doesn’t automatically pre-empt the New York Workers’ Compensation Board practice of ignoring immigration status in determining workers’ compensation eligibility. The IRCA, enacted in 1986, requires employers to only hire persons who may legally work in the U.S., such as citizens and nationals of the U.S. and authorized aliens. The employer must verify the identity and employment eligibility of anyone hired.

In the case of Jose Hernandez vs. Excel Recycling Corp., Hernandez filed for workers’ compensation benefits after he was injured in August 2003 while working for Excel Recycling Corporation. At a hearing before a Workers’ Compensation Law Judge, he admitted to buying his Social Security card to obtain work in the United States. In spite of this admission, the judge established the case for injuries to the claimant’s back, left leg and left foot, and awarded him benefits. Excel and its workers’ compensation carrier, the State Insurance Fund, applied to the Workers’ Compensation Board for review of the decision. They asserted that benefits should not be awarded because Hernandez is an undocumented alien who is not legally authorized to work in the United States. The Board denied the application because the issue was not raised when the case was brought before the Workers’ Compensation Law Judge.

The carrier appealed, arguing that the Immigration Reform and Control Act as interpreted by the United States Supreme Court in Hoffman Plastic Compounds vs. National Labor Relations Bd. pre-empts the Board’s policy of disregarding immigration status in determining eligibility for workers’ compensation benefits. The carrier admitted that the issue of the law’s applicability here was not originally raised before the Workers’ Compensation Law Judge. However, the carrier maintains that the Board was incorrect in declining to include the issue because it is a matter of law. The appeals court rejected the argument that the IRCA applied and agreed that the board is not obligated to consider an issue that was not raised before the Workers Compensation Law Judge at the time of the original hearing. Hernandez’s original benefit award was upheld.

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