Workers’ Compensation Lawyers Association MCLE

1. Workers’ Compensation Lawyers AssociationMCLE • Economy Packing Company: Are Undocumented Aliens Entitled to Benefits? • January 13, 2009 • Chicago, IL • Petitioner: Mackey & Kramer, P.C. • Respondent: Ganan & Shapiro, P.C. • 1 hour general MCLE credit

2. Issue • Are undocumented alien workers entitled to workers’ compensation benefits under the Illinois WCA? • TTD? • Maintenance? • Vocational rehabilitation? • Wage differential? • Permanent total disability benefits?

3. IL Statute • 820 ILCS 305/1(b)2: The term employee as used in this Act means: “Every person in the service of another under any contract of hire, express or implied…including aliens, and minors who, for the purpose of this Act are considered the same and have the same power to contract, receive payments and give quittances therefor, as adult employees.”

4. Comparison Statutes • VA 65.2-101: “Employee means every person, including aliens and minors, in the service of another under any contract of hire or apprenticeship, written or implied, whether lawfully or unlawfully employed…” as amended in response to Granados v. Windson Development, 509 S.E.2d 290 (1999) • WY 27-14-102(a)(vii): "Employee" means any person… and includes legally employed minors, aliens authorized to work by the United States department of justice, office of citizenship and immigration services, and aliens whom the employer reasonably believes, at the date of hire and the date of injury based upon documentation in the employer's possession, to be authorized to work by the United States department of justice, office of citizenship and immigration services.”

5. Tamayo v. Excelsior & Labor World99 IIC 521 • “The Commission finds that the Petitioner isentitled to maintenance benefits commencing July 18, 1995 through December 15, 1997, and vocational rehabilitation services pursuant to National Tea. Since the Petitioner is not employable in the United States, the Petitioner is not entitled to vocational placement. Therefore, the Commission remands the case to the Arbitrator to determine which rehabilitation services she needs to enable her to resume her secretarial career in any country where she would be legally entitled to earn wages.”

6. Miezio v. Z-Wawel Construction00 IIC 0341 • “The Commission agrees with the Arbitrator's determination that Petitioner failed to prove entitlement to a wage differential under section 8(d)1 of the Act or that he is permanently and totally disabled under Section 8(f) of the Act. However, under the facts presented herein the Commission finds it unnecessary to determine whether, as a matter of law, the fact that a claimant cannot legally be employed in this country absolutely precludes an award under Section 8(d-1) of the Act. It is a factor to be considered in the totality of evidence which in this case includes inconsistencies reported in the functional capacity evaluation, self limiting behavior noted by Dr. Wehner, pain, weakness and restricted motion of the upper extremities and the market of jobs apparently within his physical and intellectual and educational capabilities.”

7. Hoffman Plastic Compounds v. National Labor Relations Board • U.S. Supreme Court • 535 U.S. 137 (2002) • Award by NLRB of back pay to undocumented worker conflicts with federal immigration policy as expressed in the Immigration Reform and Control Act of 1986 (IRCA); 8 U.S.C. Sec. 1324 etseq. (2000) • NLRB has no authority to award back pay to an undocumented alien for wages that could not lawfully have been earned and for being fired from a job obtained in the first instance by criminal fraud

8. Ramona Navarro v. Birdland, Inc.02 WC 29261 • 58 year old, Spanish speaking chicken deboner • Admittedly did not possess documents allowing her to work in the US (3 years education in Mexico then farm work, in US since 1982 working menial jobs) • Started working for Respondent in 1992 • DA 5/7/2002; slip and fall • SX by Dr. Newman on right shoulder 11/11/2002 • Permanent restrictions? • Did not look for work after Summer 2003 • Petitioner VE Julie Bose; Respondent VE Jim Breen

9. ArbitrationNavarro v. Birdland, Inc. • Tried April 7, 2004 • Arbitrator Kathleen Hagan, 02 WC 29261 • Date of decision June 23, 2004 • “The Arbitrator finds that Petitioner is permanently and totally disabled under the odd-lot doctrine. …The Commission has previously held that a Petitioner is entitled to rehabilitation services that are needed to provide Petitioner with the physical and occupational skills necessary to enable her to resume working in any country where she would be legally entitled to work (Tamayo). The Arbitrator places greater weight on the opinions of Julie Bose and finds that Petitioner's age, lack of education, lack of transferrable skills, inability to speak English and physical restrictions render her unfit to perform any but the most menial task for which no stable labor market exists. ( A.M.T.C. of Illinois, Inc. and Courier).”

10. Commission Navarro v. Birdland, Inc. • 06 IWCC 0140 • 2/14/06 • Commissioners Rink and Sherman adopt and affirm • Commissioner Ulrich dissents: “DISSENT: I respectfully dissent from the majority and would affirm and adopt the Arbitrator's decision for reasons set forth in his decision at arbitration.”

11. Circuit CourtEconomy Packing v. IWCC and Navarro • 06 L 50438 • Cook County Circuit Court Judge Rita M. Novak confirms • October 5, 2007 • “Did the Commission apply the proper legal standard to determine whether Ms. Navarro, an undocumented worker, fell within the odd-lot category?” Yes, it applied the traditional odd-lot standard • “Is the Commission’s decision that Ms. Navarro is totally and permanently disabled against the manifest weight of the evidence?” No, based on Dr. Newman and VE Bose

12. Appellate CourtEconomy Packing Company v. IWCC • No. 1-07-2947WC • Filed 12-09-08 • Circuit Court affirmed • Unanimous Decision delivered by Justice Gordon; Justices McCullough, Grometer & Donovan concurring; Justice Holdridge specially concurring • Two issues: Did the Commission apply the correct legal standard? Is the PTD award contrary to the manifest weight of the evidence?

13. Appellate CourtNo. 1-07-2947WC • Correct legal standard? • “The plain meaning of ‘aliens’ therefore, includes not only foreign-born citizens that can legally work in the United States, but also those that cannot.” • Is the PTD award preempted by federal IRCA? No, neither expressly or implicitly (neither field or conflict preemption) • Hoffman Plastic does not apply: PTD different from back pay • Other jurisdictions have almost uniformly held that IRCA does not preclude undocumented from getting WC benefits (CA, CO, FA, GA, MD, NJ, OK, PA); but, NV says IRCA does preempt voc rehab award

14. Appellate CourtNo. 1-07-2947WC • “Whether an undocumented worker can prove she is totally and permanently disabled pursuant to the test traditionally applied to injured workers who fall within the ‘odd-lot’ category” • Manifest weight question • “Nevertheless, we believe that an undocumented alien may establish that she is PTD under the odd-lot doctrine, so long as her unemployability is not based on her immigration status.” • Citing Gayton case from NC, neither VE “considered the claimant’s immigration status when proffering their opinions;” reliance on VE Bose permissible

15. Appellate CourtNo. 1-07-2947WC • “In sum, we conclude that the Act allows workers’ compensation benefits, including PTD benefits, to be awarded to undocumented aliens and that an award of such benefits is not preempted by federal immigration law. Additionally, we hold that, for an undocumented alien to establish that she is permanently and totally disabled under the ‘odd-lot’ doctrine, she must first prove that she cannot sustain regular employment in a well-known branch of the labor market without regard to her undocumented status. The burden then shifts to the employer to prove that, but for the undocumented alien’s legal inability to obtain employment, suitable work would be regularly and continuously available.”