With all the discussion over Arizona's tough stance on undocumented aliens, a renewed interest has been undertaken regarding Texas' stance on these aliens in a workers' compensation context.
As anyone who deals with the workers' compensation system in Texas knows, the primary reason we have undocumented workers is because there are certain jobs that are so bad, no one will do them except people from third-world countries who are desperate for a better life. No amount of border patrolling or fence building will keep people out of this country as long as there is a demand for workers who will work long hours in dangerous jobs for very little pay. In Texas, these jobs are found in the meat packing industry, textile industry and in chemical plants along the Houston Ship Channel and Texas coastline.
For instance, according to OSHA statistics, 36% of meat packing employees are injured on the job each year. In Texas, the statistics are much worse. In 1999, the Cargill meat packing plants in Plainview and Friona had a combined 62% injury rate. Most of these injuries were cumulative trauma injuries. However, the extensive use of sharp knives and hand tools, slippery floors, and the continuous need for refrigerated workplaces, as well as the need to lift and move heavy carcasses make the meatpacking plants extremely dangerous. At the same time, pricing pressures force employers to keep wages low and hours long. As a result, the vast majority of these jobs are filled with workers who have no other place to go. Is it any mystery then, why, in 2006 the federal government raided six Swift & Co. meat packing plants for hiring undocumented aliens?
So, in such a dangerous working environment, the question then arises: "What happens when an undocumented or illegal alien is injured but given a return to light duty work? Can the carrier deny the lost wage benefit or TIBS because the injured worker does not have a valid social security number?
First, an injured worker's alien status is not a complete bar to receiving workers compensation benefits. Commercial Standard Fire and Marine Company v. Galindo, 484 S.W.2d. 635 (Tex. Civ. App.—El Paso 1972, writ ref'd n.r.e.); This holding has been adopted under the current compensation act by APD 022258-s. Second, in a case involving a meat packer, Tyson Foods, Inc. v. Guzman 116 S.W.3d 233, (Tex.App.-Tyler 2003,no pet.), the court held that not only can an undocumented alien be compensated for lost wages, the undocumented worker is also entitled to recover for lost earning capacity for the future. In other words, there is no presumption that the worker would be deported and unable to earn wages in the country of origin. However, if an employee returns to work, even at light duty, and is later terminated, laid off, or quits, and the evidence shows that the injured undocumented worker's medical condition has not changed, the worker may not establish disability if the sole reason other employment cannot be obtained is the injured worker's illegal alien status. APD 000529.
But what about the risk of deportation should an injured worker report the injury? Well, this is another reason certain employers hire illegals. In jobs such as meatpacking where the primary injury type is repetitive trauma, the outward signs of injury are hidden. These workers will simply work with the pain. However, for the worker with the courage to come forward, it is important to remember that the employer could be facing fines and penalties for hiring undocumented aliens and has no desire for the worker to be discovered. Also, should the worker hire a lawyer, that lawyer has a duty of confidentiality and will not disclose the alien's status. There may be other risks, such as the insurance adjuster reporting the alien's status. But, the injured worker should not fear at least consulting with a lawyer in the event of an injury.
So, despite the hard stance taken against undocumented aliens, at least for now the law protects them should they get injured at work. If you or someone you know has been injured at work, seek an attorney board-certified for their experience and qualifications in workers' compensation law.