Employer On Hook For Partial Disability Payments For Injured Worker Even After Discovering Immigration Issue

Following an on-the-job injury for a construction company, a worker received total disability payments from the company.  At the request of the company’s workers’ compensation insurance carrier, however, the company determined that the worker was an undocumented worker without a valid social security number.  The employer terminated the employment and hired a doctor to reevaluate the worker’s injuries.  The doctor concluded that although the worker remained disabled, he could perform “light duty” work with restrictions.  The employer then filed a petition with the Delaware Industrial Accident Board (the “Board”) to terminate the worker’s total disability benefit payments.  The Board granted the petition because the worker was physically capable of working and that he was not eligible for partial disability benefits because the employer had met its burden of showing that the worker would be eligible for light duty jobs at the company at his pre-injury wage if he could provide a valid social security number.

Last week, the Supreme Court of Delaware concluded that the Board erred by finding the worker eligible for partial disability benefits on the theory that if the Board was correct, an employer “could always hire an undocumented worker, have him suffer a work-place injury, and then avoid partial disability benefit payments by ‘discovering’ his immigration status, offering to re-employ him if he could fix it, and claiming that a job is available to him at no loss in wages.”  The court explained why this outcome would be contrary to Delaware’s workers’ compensation regime and the goals of federal immigration laws.  Specifically, such an outcome would encourage companies to hire undocumented workers to reduce workplace safety expenses, worker pay, and benefits.  Although the court understood that the employer in this case likely would have a difficult time to prove job availability for this particular worker given federal restrictions on hiring undocumented workers, “any difficulty is appropriately borne by it as the employer, who must take the employee … as it hired him.”