NE Court: Illegal immigrant entitled to workers' comp

LINCOLN — David Gutierrez was left physically unable to work after his foot was run over by a forklift on the job at Omaha’s Quality Pork International packing house in August 2008. 

Trouble is, he was not able, legally, to hold a job at the meat plant. Gutierrez was the false name assumed by illegal immigrant Ricardo Moyera when he used purchased documents to land the job in March 2007. 

In a case that went to the Nebraska Supreme Court, Moyera’s employers argued that they should not have to pay an estimated $2 million over the rest of the worker’s life to cover his lost wages and medical costs.

On Friday, the Nebraska Supreme Court ruled that Moyera, despite being an illegal immigrant from Mexico, is entitled to workers’ compensation payments through his employer for his on-the-job injury. 

It was the first time the high court has held that illegal immigrants are protected by state workers’ compensation laws. The decision adopted and expanded a similar ruling made by the midlevel Nebraska Court of Appeals in 2009. 

Written by Judge William Connolly, Friday’s opinion followed the lead of other courts across the country. Those courts have reasoned that excluding workers in the U.S. 

illegally from disability benefits creates a financial incentive to hire illegal immigrants and gives scofflaw employers an advantage over competitors who follow the law. 

“This is an issue that’s been rumbling and rumbling for years,” said Moyera’s attorney, Michael P. Dowd of Omaha. “This is the first time it’s been pushed to the point where we’re going to decide this issue.” 

Dowd said an increasing number of his clients are Spanish-speaking immigrants — from Mexico as well as from Cuba, El Salvador, Guatemala and elsewhere. He said those workers often are vulnerable to serious injury because they take dangerous jobs others won’t accept. Many, such as Moyera, speak no English. 

No tax dollars were directly at stake in the case. Workers’ compensation benefits are financed by employers, who are mandated by law to carry workers’ compensation insurance. The system is intended to limit employers’ liability while providing injured workers an avenue for quick resolution of their claims. 

In fact, Dowd argued that the ruling could save taxpayer expense by requiring the company to foot the bill for Moyera’s injuries instead of leaving him to seek indigent health care. 

“This decision really protects the taxpayers by maintaining the burden and the cost on the employer, who is the one deriving benefits from the worker’s labor,” he said. 

The lawyer representing the company was out of the office and unavailable to comment Friday. Officials with the company also declined to comment. 

Dowd said Moyera is married and the father of three children born in the United States.

The forklift accident, which occurred when he was 29, broke several bones in Moyera’s foot and led to reflex sympathetic dystrophy, a painful nerve disorder. He also suffers severe back and hip pain and must use a cane to walk. A mutually agreed upon rehabilitation expert concluded that Moyera had lost 100 percent of his earning capacity as a result of the injury. 

Moyera’s approximate benefits would include $333.88 per week for lost wages during his remaining life expectancy, plus $987 per month for his pain medication and about $2,000 per year for other medical expenses, said Dowd, who estimated the total cost to the company at more than $2 million. 

After the injury, the pork packinghouse assigned Moyera to a light-duty janitorial position that enabled him to elevate his foot when it swelled. But in May 2010, after the company’s personnel manager audited employment files, Moyera was fired for lack of proper immigration documents. 

Attorneys for the packing plant challenged a Workers’ Compensation Court finding in Moyera’s favor. They pointed to a 2005 Nebraska Supreme Court ruling that illegal immigrants are not entitled to vocational rehabilitation services because they are not employable in the United States. 

The attorneys contended that benefits for a permanent loss of earning power also should depend on an employee’s ability to obtain lawful employment. Moyera had no earning capacity to lose, they argued, because his lack of English and his immigration status would prevent him from getting a new job in this country. 

The high court, however, made a distinction between vocational rehabilitation and disability compensation. Connolly wrote that vocational rehabilitation services, intended to help a worker move into a new career, are triggered when a workplace injury prevents an employee from returning to the same job or a similar one. If a worker’s immigration status makes him ineligible to return to work, the Workers’ Compensation Court cannot order retraining for a different career. 

In contrast, the court said, disability benefits reflect that the work-related injury prevents the employee from working in the United States or elsewhere. 

The court also noted that the language of state workers’ compensation law says it applies to “aliens” without a specific requirement that immigrants be in the United States legally. 

“We agree that the ordinary meaning of ‘aliens’ is broad enough to include both legal and illegal aliens, with or without work authorization,” Connolly wrote, endorsing the Court of Appeals’ reasoning. “Moreover, if it was the intent of the Nebraska Legislature to exclude illegal aliens from the definition of covered employees or workers, it could have easily included a modifier doing so in the statute, but the Legislature did not, and has not, done so.”

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