The question often arises in Florida as to whether undocumented workers can be compensated for lost wages (past and future) in personal injury and workers’ compensation cases. With few exceptions, the answer appears to be No.
Although the damages available in workers’ compensation and personal injury cases may differ, both offer elements of awards for lost wages. Proving entitlement requires showing that the lost wages are related to the injuries. However, the employer (wc) and defendant (pi) may nullify the proof by establishing that the claimant is prohibited from working in the United States due to immigration issues. In other words, an immigrant who is not authorized to work in the United States, cannot be compensated under Florida law for lost income resulting from an accident.
The two primary exceptions in workers’ compensation cases are (1) the employee is totally, as opposed to partially, unable to work because of his injuries, and (2) the employer knew or should have known of the employee’s status as an unauthorized alien prior to the disabling accident. (The law of Florida does not impose on an employer the burden of verifying forged or borrowed green cards – Florida Statute 448.09 – nor is there any such federal requirement.)
The first exception applied in the first workers’ compensation case that I handled, a number of years ago. My client, who was blind in one eye, was struck in his good eye by the end of a whipping electric cord. The impact caused his retina to detach, leading to blindness in the good eye and overall total blindness. My client was a nice young man from the Bahamas, who had lived and worked in America for many years, but had never obtained the proper paperwork to work here legally. Nevertheless, despite resistance from his employer and its insurance carrier, I was able to obtain wage loss benefits for him, both temporary (prior to maximum medical improvement) and permanent (PTD; after reaching MMI).
I am unaware of any exceptions in personal injury cases. (Because of workers’ compensation immunity, Florida Statute 440.11, very few personal injury cases are brought against employers. However, in those rare instances where the immunity can be overcome, I believe that exception (2) would apply.)
Plaintiffs in personal injury cases should be cautious about pursuing lost wages past and future. Even if the trial court allows the claim to proceed, which is probably judicial error and therefore highly unlikely, the strategy could backfire. A wage claim by an unauthorized worker opens the door for the defendant to discuss the plaintiff’s undocumented immigration status. Especially in today’s social climate, jurors may well punish the plaintiff, not only denying the wage claim but also denying legitimate claims for pain & suffering and medical expenses.
For the plaintiff’s attorney willing to push the issue, an effort should be made to obtain a pre-trial court order prohibiting any reference to the plaintiff’s undocumented immigration status. Where the judge is allowing the claim for lost wages to be presented to the jury, it is doubtful that he will also prohibit references to immigration status.
UPDATE: HDV Construction Systems, Inc. v. Aragon, So.3d , 36 FLW D1376 (Fla.1st DCA 6-28-2011). In this workers’ compensation case, the District Court of Appeal upheld (affirmed) the ruling of the JCC (Judge of Compensation Claims) awarding an illegal immigrant permanent total disability (PTD) benefits. The DCA was strongly persuaded by the employer’s knowledge, prior to the accident, of the worker’s status as an undocumented alien. The court felt that industry, rather than the public, should bear the burden of compensating individuals seriously injured while working on their behalf. The ruling confirms the legislature’s intent to keep the burden on industry, despite federal law.
Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.
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