Sanchez-Rivera v Jorge Calderon Construction
Inj. No. 10-059076 9/21/2017
The Commission awarded life-time disability benefits to a young man who was an "illegal" immigrant with ankle injuries and psychiatric issues.
The Commission affirms a PTD award to a 34 year old worker he fell from a ladder while installing windows resulting in injuries to his legs, feet, ankles and back. He was diagnosed with a compression fracture and bilateral tibial fractures. He was found at MMI in 2011. His expert concluded he became depressed with PTSD.
He reports constant pain in both ankles uncontrolled with daily narcotics and states he was told he may require ankle fusions. He was told to monitor his liver because of daily use of medications.
A vocational expert did not perform any vocational testing concluded he was unemployable given work restrictions that suggest less than sedentary work and a reported need to lie down to "ease his pain." He noted he had about an 8th grade education which was a barrier to re-training.
The employer relied upon an expert who provided an impairment rating and concluded claimant was capable only of sedentary work due to ankle injuries.
Missouri does not create a statutory distinction regarding immigration status regarding entitlement to work place injuries. There are public policy debates on either side whether the risk of injury should fall on undocumented workers or on the employers who hire them.
The employer argued to the vocational specialist that claimant's undocumented immigration status and lack of proficiency in English were important factors why he isn't working after his accident. Dr. Koprivica indicated he was totally disabled and was unemployable despite the "language barrier."
The decision shows a duty of the employer to pay for injuries on the job independent of the immigration status. In this case, the claimant fell from a ladder from an unexplained fall. The ALJ accepted as credible the assertion from the 34-year old that he needs to lie down al the time, take narcotics daily. The employer's own expert opinion conceded he was limited to sedentary work due to ankle fractures and a healed back compression fracture. The ALJ accepted as credible vocational opinion that claimant was vocationally disabled without any vocational tests because the vocational expert indicated the claimant could not perform the tests in English. It is not clear why he could not perform the tests in Spanish or why someone with an 8th grade education could not improve their education.
The Division appears to send another message that it perceives the employer as a bad actor in its recitation of facts.
The employer hired claimant fully aware of uncertain immigration status based on testimony that the employer furnished a generic social security number. Claimant was not a new hire. Claimant stated other members of his family, who were also undocumented, were hired by the same employer and paid in cash. There is no suggestion that the employer was tricked based on fake documents.
State Farm, in the ends, appears to be stuck holding the bag on a big-ticket case.
A carrier can decide who it insures, whether to renew accounts, and what behavior voids any duty to defend a case. There are obvious increased potential risks from vocational barriers to someone looking for work after an injury if the person is undocumented and lacks proper immigration status. Any insurer who offers a policy may want to examine its policies on hiring and immigration issues as much as policies regarding other safety rules and risk management issues. Employers who do not obtain or cannot obtain insurance operate at their own peril.
ALJ Fowler
Atty: Curotto
Experts: Koprivica
