BCM successfully defends against illegal alien's claim for vocational rehabilitation

BCM Law, P.C. succeeded on behalf of the defense in a recent decision by Arbitrator Dollison denying vocational rehabilitation for a claimant who admitted he was an illegal alien and was not legally allowed to work. Espinosa v. Imperial Plumbing, 04 WC 28040 (decision filed September 1, 2006). The arbitrator also awarded the employer a credit of $7,455.29 for maintenance benefits paid prior to trial. Citing U.S. Supreme Court precedent, Paul successfully argued that vocational rehabilitation and maintenance would be futile and contrary to federal immigration law and public policy.

In this case, the employer's vocational expert (the only one who testified) stated that the only vocational rehabilitation appropriate for the claimant was job placement, except that his immigration status precluded him from being hired. But for his immigration status, the expert identified several available jobs for which the claimant was otherwise qualified. The arbitrator also noted that the claimant had lied on his job application and supplied a phony social security number in order to get hired by the employer, as well as by a previous employer in Indiana. The arbitrator concluded that federal immigration statutes precluded further job placement as a matter of law, and that forcing the employer to provide vocational rehabilitation would be the same as requiring the violation of federal statute.

The claimant will most likely appeal this decision. In the meantime, it should provide defense ammunition to help settle or resolve claims involving similar issues. The arbitrator also noted the prior Commission decision in Miezio v. Z-Wawel Construction, 00 IIC 0341 (2000), in which the Commission held as a matter of law that a claimant without the legal right to work under federal immigration law was unable to establish a loss of earning capacity for purposes of claiming wage differential benefits.