Worker

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Workers Compensation and the Undocumented
Worker

• Alfredo J. Antezana, Esq
• Antezana Antezana, LLC

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Overview

• Counseling a Spanish Speaking Client
• Design Kitchen v. Lagos
• Medical Concerns to the Spanish Community

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Counseling a Spanish Speaking Client

• Representation means more than being a counselor
• No Pain and Suffering in Workers Compensation
• Checks delivered to office

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Hoffman Plastic Compounds, Inc. v. Natl Labor
Relations Bd.535 U.S. 137 (2002)

• FACTS
• An employer terminated an employee, who was
  undocumented, for engaging in pro union
  activities.
• The discharged worker filed suit for back pay.
• The employer argued that the discharged employee
  was not entitled to back pay because he was
  undocumented.

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Hoffman Plastic Compounds, Inc. v. Natl Labor
Relations Bd.535 U.S. 137 (2002)

• 5 to 4 Decision
• The Supreme Court held that an undocumented
  worker had no right to recover wages under a
  federal statute because it conflicts with
  immigration laws

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What is an undocumented worker?

• An individual who does not have a valid social
  security account number card under 8 U.S.C.
  1324a(b)(C)(i)

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Design Kitchen v. LagosCourt of Appeals of MD
Filed Sept. 12, 2005

• FACTS
• Lagos injured his left hand while operating a saw
  under the employment of Design Kitchen and Baths
• The injury required medical treatment, including
  2 surgical procedures
• A Workers Compensation claim was filed

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Design Kitchen v. LagosCourt of Appeals of MD
Filed Sept. 12, 2005

• Issues Raised at the hearing level by the
  employer/insurance company
• Accidental injury
• Causal relationship
• AWW
• Proper insurer
• Undocumented worker

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Design Kitchen v. LagosCourt of Appeals of MD
Filed Sept. 12, 2005

• Issues for the Court of Appeals
• Does the undocumented worker have workers
  compensation rights?

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Design Kitchen v. LagosCourt of Appeals of MD
Filed Sept. 12, 2005

• 6 to 1 Decision
• Undocumented workers are covered employees under
  the Act and are eligible to receive workers
  compensation benefits

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Design Kitchen v. LagosCourt of Appeals of MD
Filed Sept. 12, 2005

• Clear language of the statute
• Legislative History
• Purpose of the Act
• Public Policy

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Design Kitchen v. LagosCourt of Appeals of MD
Filed Sept. 12, 2005Statute Language

• The Court agreed that 9-202 is not ambiguous
• The clear and unambiguous language of 9-202
  encompasses undocumented aliens
• The statute provides a covered employee is
  characterized by two elements an express/implied
  contract of hire and is in service of an
  employer.

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Design Kitchen v. LagosCourt of Appeals of MD
Filed Sept. 12, 2005Legislative History

• 21 defined a covered employee as every
  personwhether lawfully or unlawfully employed
• Revisions of 21, now 9-202, were intended to be
  made without substantive change

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Design Kitchen v. LagosCourt of Appeals of MD
Filed Sept. 12, 2005Purpose of the Act

• to protect employees, employers, and the public
  alike.

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Design Kitchen v. LagosCourt of Appeals of MD
Filed Sept. 12, 2005Public Policy

• If no coverage under statute then no relief for
  injuries OR sue in tort
• Encourage a safe work environment with no fear of
  retribution

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Design Kitchen v. LagosCourt of Appeals of MD
Filed Sept. 12, 20052 Interpretations

• Undocumented workers are entitled to all benefits
  except voc rehab (status quo)

• Undocumented workers are entitled to all benefits
  since they are covered employees per the Court of
  Appeals

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Medical Concerns

• The need for a Spanish speaking doctor
• The impact of Chiropractic care
• The cultural belief of 100 recovery
• The inability to provide proper medical history
  to doctors

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Any Questions