Can An Undocumented Worker Receive Workers’ Compensation Benefits?

document_paper_former_war-scaledNavigating receiving workers’ compensation benefits following an on-the-job injury can be difficult. It is even more difficult when you are an undocumented worker. Unfortunately, that is the situation Candido Perdomo, an undocumented worker, found himself in after he was injured when he was pinned underneath a garbage truck when a road collapsed. 

Perdomo filed a claim against RKC and its insurer after they reduced his workers’ compensation benefits following his injury.  RKC agreed that Perdomo was injured in the scope of his employment. Although they agreed that his average wage was $630 per week at the time of the accident and his compensation was $420 per week, they claimed that he had a weekly earning capacity of $145 per week after the accident, with a compensation rate of $323.33. Therefore, they claimed they had the right to reduce Perdomo’s benefits under La. R.S. 23:1206

This claim went to trial at the Office of Workers’ Compensation (“OWC”), who agreed with the Defendants that the reduction in Perdomo’s benefits to $323.33 was appropriate. The OWC noted that it was the Defendants’ burden to establish that Perdomo could physically perform a given job and that Perdomo had not met his burden of proof in showing that his injury caused his inability to work. The OWC also said that Perdomo could not rely on the fact he was undocumented as a reason he had not found work. Perdomo appealed. 

La R.S. 23:1221(3) governs entitlement to supplemental earning benefits. To receive such benefits, the employee must first establish he cannot earn wages equal to at least 90% of the wages earned before the accident. Then, once this burden is met, the employer must prove the employee could physically perform a job offered to the employee or otherwise available to him. On appeal, the appellate court cannot overturn the findings of the worker’s compensation judge unless there is a clearly wrong error. 

On appeal, Perdomo claimed that none of the jobs Defendants identified for him were suitable given his undocumented status.  Additionally, Perdomo claimed his physician said he could not work and disapproved of the jobs.  The court found that Defendants failed to provide evidence that it complied with legal requirements of hiring individuals eligible to work in the United States when they hired Perdomo. Therefore, Defendants are assumed to have had knowledge of his undocumented status and are responsible for the associated effects once he was injured. The appellate court explained this was supposed to prevent employers from profiting by illegally hiring undocumented workers. 

The appellate court found the Defendants did not discharge their burden of proving there was an appropriate job available for Perdomo and did not present a suitable position for him. Therefore, the appellate court reversed the judgment of the OWC and reinstated Perdomo’s workers’ compensation benefits to $420 per week on a retroactive basis to the date when his benefits were incorrectly reduced. 

This case answers the question; can an undocumented worker receive workers’ compensation benefits? Yes, they can. This case also demonstrates the complexity of making a claim for workers’ compensation. If you find yourself navigating the workers’ compensation system after an on-the-job injury, you must consult with a good attorney who can help you receive the compensation to which you are entitled.

Additional Sources: Candido Perdomo v. RKC, LLC, and LWCC 

Written By Berniard Law Firm Writer

Additional Berniard Law Firm Article on Workers’ Compensation Claims: What Happens If You Can’t Earn Your Original Salary After a Workers Compensation Claim?

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