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Worker

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Worker's Compensation. and the. Undocumented Worker. Alfredo J. Antezana, Esq ... An employer terminated an employee, who was undocumented, for engaging in pro ... – PowerPoint PPT presentation

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Title: Worker


1
Workers Compensation and the Undocumented
Worker
  • Alfredo J. Antezana, Esq
  • Antezana Antezana, LLC

2
Overview
  • Counseling a Spanish Speaking Client
  • Design Kitchen v. Lagos
  • Medical Concerns to the Spanish Community

3
Counseling a Spanish Speaking Client
  • Representation means more than being a counselor
  • No Pain and Suffering in Workers Compensation
  • Checks delivered to office

4
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.

5
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

6
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)

7
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

8
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

9
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?

10
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

11
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

12
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.

13
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

14
Design Kitchen v. LagosCourt of Appeals of MD
Filed Sept. 12, 2005Purpose of the Act
  • to protect employees, employers, and the public
    alike.

15
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

16
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

17
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

18
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