Immigration Status Does Not Affect Right To Sue Or Obtain Workers’ Compensation Benefits

By: David Huber

An important issue commonly facing workers and individuals or families injured by others is whether immigration status affects rights to recover benefits under the Illinois Workers' Compensation Act or the right to sue in court to recover damages. It is not uncommon for employers, insurers and others to attempt to intimidate injured workers to prevent them from accessing benefits by threatening to bring into question immigration status of the injured worker, witnesses or co-workers. Such behavior is not only wrong, but has no basis in the law.

The Illinois Workers' Compensation Act is specifically designed to provide workers injured on the job, often breadwinners, crucial benefits that are needed when injuries prevent the worker from earning wages. The Act provides that employers' insurance carriers provide 2/3 of a disabled workers' average weekly wage for the time that the worker is temporarily totally disabled. Moreover, employers' insurance carriers are responsible to pay all reasonable and necessary medical bills, including emergency room, hospital, doctor, physical therapy and surgical bills incurred as a result of an on-the-job injury. Additionally, if a worker sustains a permanent injury, he may be entitled to an award based on permanent partial disability.

The Act provides that in death cases non-resident alien workers' families are entitled to one-half of death benefits available to families of documented workers or U.S. citizens. However, the Act contains no such reduction as to temporary total disability, medical or permanency benefits based on immigration status in cases that do not involve a fatal injury. Workers and their families are entitled to and deserve full benefits when on-the-job injuries prevent a worker from providing for his family, especially during the difficult time following a serious injury.

CONSTITUTIONAL AND STATUTORY PROTECTIONS

The Fourteenth Amendment to the U.S. Constitution guarantees the right to every person within the borders of the United States, regardless of citizenship, the right to equal protection under the law. The Civil Rights Act ensures that all persons within the borders of the U.S. are guaranteed the right to bring lawsuits against those that cause them injury without regard to whether they are in the country legally or not. This is important because those without settled immigration status or those out of status are often most vulnerable and adversely affected by an interruption in income caused by a serious injury.

Aside from the immigration status of injured persons or their families who may need to pursue legal action, the status of witnesses, such as co-workers may be at issue. Witnesses with crucial information about an incident often are reticent for fear that questions about their immigration status might predispose a judge or jury against them or, worse, bring trouble to them if they come forward. Fortunately, strong protections are in place to ensure that witnesses with relevant information and litigants with legitimate claims are able to access the court system.

RECENT JURY VERDICT

Recently, Martin Healy, Jr, Jack Cannon and David Huber of Healy Scanlon Law Firm obtained a verdict on behalf of the family of a Mexican laborer killed by a drunk driver while in the custody of police officers in the Town of Cicero. The man was involved in an argument on the sidewalk in downtown Cicero on Halloween night, 2004. Cicero police officers arrived at the scene and parked on 56th Court parallel to traffic on Cermak Road, a main thoroughfare. The officers did not illuminate their emergency lights, despite their training, and despite the heavy traffic. They ordered the man to stand behind the squad car, in the middle of the intersection, just inches from passing traffic. A drunk driver, passing on the street at a high rate of speed, hit another vehicle, lost control and crashed into the squad car, pinning the man between the vehicles. His legs were severed at the knees, and he was thrown to the sidewalk. He died the next day, leaving a widow and six children in Mexico whom he supported as a day laborer.

The man had emigrated to the U.S. six years earlier on a work permit. The judge in the case ruled that the man's immigration status was not relevant to the issues in the case. The man's family was entitled to pursue a wrongful death claim against the drunk driver and the Town of Cicero, whose police officers ordered him to stand in the path of traffic. Additionally, the judge ruled that witnesses called to testify about the events leading up to the man's death could not be questioned regarding their own immigration status. This ensured that witnesses could testify about what they saw and heard that evening without fear of intimidation or bias against them as a result of their immigration status. After deliberating for about three hours, the jury returned a verdict of $7.5 million for the family of the worker.

Workers, individuals and families injured because of the fault of others are entitled to the same access to the courts as anyone in the U.S. The immigration status of witnesses does not automatically make them unreliable and should not deter them from coming forward to speak the truth. Fortunately, the law, including the Constitution of the United States and the Illinois Workers' Compensation Act, as well as numerous appellate court decisions contains strong protections for workers, individuals, their families and witnesses, which ensure equal access to the courts.