Illegal Immigrant Injuries

Courts Rule on Undocumented Worker Cases

Workers’ comp claims from undocumented workers shape employer responsibility.
By: | February 21, 2014 • 3 min read

While one recent state supreme court ruling shows the challenges employers can face when providing workers’ compensation benefits to undocumented workers, another court decision reveals why employers want to provide those benefits.

Nebraska’s Supreme Court ruled on February 14, 2014, in a complex case involving a Cargill Inc. meat processing plant worker injured in 2006. He was injured when a “quarter slab of beef fell from  a conveyor belt hook” onto his head, according the ruling in Visoso v. Cargill Meat Solutions.

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Odilon Visoso, the worker also known as Adam Rodriguez, eventually required neck surgery, chiropractic services, physical therapy, and pain medication.

After a trial in 2008 he was awarded temporary total disability benefits. Then in 2011, Cargill petitioned to discontinue those benefits when Visoso reached maximum medical improvement.

A vocational rehabilitation counselor was appointed to assess his loss of earning capacity.

“When no credible data exists for the community [in Mexico] to which the employee has relocated, the community [in Nebraska] where the injury occurred can serve as the hub community” for purposes of determining loss of earning capacity.  — Nebraska Supreme Court

Visoso, meanwhile, returned to Guerrero, Mexico and the vocational rehabilitation counselor was unable to provide the assessment because no wage data existed for the community in Mexico where Visoso lived.

A compensation court terminated Cargill’s obligation to pay temporary disability benefits and declined Visoso’s claim for permanent impairment and loss of earning capacity because he had not met a burden to prove the loss of earning capacity in Mexico.

On appeal, Nebraska’s Supreme Court ruled last year that “when no credible data exists for the community to which the employee has relocated, the community where the injury occurred can serve as the hub community.”

The court remanded the case to the worker’s compensation court so Visoso could establish his loss of earning capacity in Schuyler, Neb., where he was injured.

On remand, a compensation court judge found Visoso suffered a 45 percent loss of earning capacity.

Visoso appealed again, arguing that the compensation court judge improperly reached his decision without considered the evidence provided by a vocational rehabilitation expert retained by Visoso.

On February 14, the Supreme Court agreed that the judge failed to weigh all the evidence before reaching his conclusion.

The state’s high court, therefore, once again remanded the case. This time for the compensation court to determine whether the evidence provided by the vocational rehabilitation counselor had been rebutted by the vocational rehabilitation expert Visoso retained.

Visoso’s witness had concluded that he sustained a 100 percent loss of earning capacity, regardless of where he lived.

The case shows the legal complications that can consume employers when an undocumented worker is injured and then returns to their native country while still pursuing workers comp benefits.

A February, 13, 2014, New York Court of Appeals ruling shows, however, how employers can benefit from state laws requiring that injured undocumented workers be provided with workers’ comp benefits.

New York’s highest court essentially ruled that employers hiring undocumented workers are protected by the state’s workers’ comp law.

That case of  New York Hos. Med. Ctr. Of Queens v. Microtech Contr. Corp. involved two brothers from Peru who were undocumented workers, not legally employable in the United States.

They were injured while demolishing a hospital basement for a company the hospital contracted to complete the job.

The contractor provided the injured men workers’ comp benefits, but they sued the hospital for violating labor laws. The hospital in turn sued the contractor in attempt to collect damages it incurred as a result of litigation with the brothers.

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The lawsuit eventually reached the New York Court of Appeals.

It upheld a lower court finding that ruling in the hospital’s favor would effectively deny the contractor the economic protections it acquired under the state’s workers’ comp law in return for providing the brothers compensation benefits.

Roberto Ceniceros is senior editor at Risk & Insurance® and chair of the National Workers' Compensation and Disability Conference® & Expo. He can be reached at [email protected] Read more of his columns and features.

4 Companies That Rocked It by Treating Injured Workers as Equals; Not Adversaries

The 2018 Teddy Award winners built their programs around people, not claims, and offer proof that a worker-centric approach is a smarter way to operate.
By: | October 30, 2018 • 3 min read

Across the workers’ compensation industry, the concept of a worker advocacy model has been around for a while, but has only seen notable adoption in recent years.

Even among those not adopting a formal advocacy approach, mindsets are shifting. Formerly claims-centric programs are becoming worker-centric and it’s a win all around: better outcomes; greater productivity; safer, healthier employees and a stronger bottom line.

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That’s what you’ll see in this month’s issue of Risk & Insurance® when you read the profiles of the four recipients of the 2018 Theodore Roosevelt Workers’ Compensation and Disability Management Award, sponsored by PMA Companies. These four programs put workers front and center in everything they do.

“We were focused on building up a program with an eye on our partner experience. Cost was at the bottom of the list. Doing a better job by our partners was at the top,” said Steve Legg, director of risk management for Starbucks.

Starbucks put claims reporting in the hands of its partners, an exemplary act of trust. The coffee company also put itself in workers’ shoes to identify and remove points of friction.

That led to a call center run by Starbucks’ TPA and a dedicated telephonic case management team so that partners can speak to a live person without the frustration of ‘phone tag’ and unanswered questions.

“We were focused on building up a program with an eye on our partner experience. Cost was at the bottom of the list. Doing a better job by our partners was at the top.” — Steve Legg, director of risk management, Starbucks

Starbucks also implemented direct deposit for lost-time pay, eliminating stressful wait times for injured partners, and allowing them to focus on healing.

For Starbucks, as for all of the 2018 Teddy Award winners, the approach is netting measurable results. With higher partner satisfaction, it has seen a 50 percent decrease in litigation.

Teddy winner Main Line Health (MLH) adopted worker advocacy in a way that goes far beyond claims.

Employees who identify and report safety hazards can take credit for their actions by sending out a formal “Employee Safety Message” to nearly 11,000 mailboxes across the organization.

“The recognition is pretty cool,” said Steve Besack, system director, claims management and workers’ compensation for the health system.

MLH also takes a non-adversarial approach to workers with repeat injuries, seeing them as a resource for identifying areas of improvement.

“When you look at ‘repeat offenders’ in an unconventional way, they’re a great asset to the program, not a liability,” said Mike Miller, manager, workers’ compensation and employee safety for MLH.

Teddy winner Monmouth County, N.J. utilizes high-tech motion capture technology to reduce the chance of placing new hires in jobs that are likely to hurt them.

Monmouth County also adopted numerous wellness initiatives that help workers manage their weight and improve their wellbeing overall.

“You should see the looks on their faces when their cholesterol is down, they’ve lost weight and their blood sugar is better. We’ve had people lose 30 and 40 pounds,” said William McGuane, the county’s manager of benefits and workers’ compensation.

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Do these sound like minor program elements? The math says otherwise: Claims severity has plunged from $5.5 million in 2009 to $1.3 million in 2017.

At the University of Pennsylvania, putting workers first means getting out from behind the desk and finding out what each one of them is tasked with, day in, day out — and looking for ways to make each of those tasks safer.

Regular observations across the sprawling campus have resulted in a phenomenal number of process and equipment changes that seem simple on their own, but in combination have created a substantially safer, healthier campus and improved employee morale.

UPenn’s workers’ comp costs, in the seven-digit figures in 2009, have been virtually cut in half.

Risk & Insurance® is proud to honor the work of these four organizations. We hope their stories inspire other organizations to be true partners with the employees they depend on. &

Michelle Kerr is associate editor of Risk & Insurance. She can be reached at [email protected]