Undocumented, and Unprotected? DC Sees Lack of Work Comp Cases for Illegal Immigrants

11.22.2017


By Phil Yacuboski

This is the next article in WorkersCompensation.com's “Undocumented, and Unprotected?” series, as our writers explore what is it like to be an undocumented worker in the U.S., and what it means regarding workers' compensation.

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Washington, D.C. (WorkersCompensation.com) – Undocumented workers in Washington, D.C. have access to the same workers’ compensation benefits as U.S. citizens, according to case law.

However, many attorneys said they simply don’t see a lot of cases involving illegal immigrants in our nation’s capital.

“I'm uncertain why we don't see them filing workers' compensation claims,” said attorney David Numrych, whose practice represents insurance carriers in defense of civil litigation and of workers’ compensation cases. He practices in Maryland, Virginia and the District of Columbia.

“There may be a perceived stigma about engaging the Federal Government as an undocumented alien seeking benefits. It also might be the case where most reputable employers simply will not hire an undocumented alien.”

Do they exist in the workforce? Sure they do, said Numrych.

“But they tend to remain out of both the Courts and workers' compensation system except in rare cases. There may be a desire to avoid any visibility with the Federal Government, but that is just a guess on my part,” he said.

In 2014, the last time Pew Research estimated the number of undocumented immigrants in each state, the District of Columbia was found to have about 25,000, or about 3.9% of the population. An overwhelming majority are from Mexico. The same research found there are about 11 million illegal immigrants in the United States.

In 2005, Palemon Gonzales, a busboy working at a Washington, D.C. bar, was struck in the eye by a bottle and blinded. He applied for workers’ comp benefits. The bar’s owner claimed that Gonzales was actually someone else because he presented paperwork that belonged to his cousin, thus raising a red flag. However, the workers’ comp board agreed with Gonzales because it’s “consistent with the principle that the (Workers’ Compensation) Act is to be construed liberally to achieve its humanitarian purpose,” according to The Washington Examiner. 

The court said in its ruling that if employers didn’t have to pay workers’ comp for such employees, it would create a “powerful incentive” to hire them to work.

“It doesn’t matter if you’re documented or undocumented, the claim would be paid,” said Mike Scaramellino, of TriState Business Insurance, based in Fairfax, VA.

Scaramellino said his firm hadn’t paid any claims to undocumented workers.

“Unfortunately, what usually happens is that they don’t put in a claim,” he said. “But if they knew, the insurance company would pay the claim. I don’t think the insurance company cares what the status is on the person.”

There have been cases nationwide where undocumented workers file a claim with a false Social Security Number.

“If that was the case, I believe it would be grounds for the insurance company to deny the claim,” said Scaramellino. “The only reason I say that is because that’s now the fault of the individual, not the employer. The insurance company could argue that you defrauded your employer because you gave them false information. That’s a logical procedure, but more often than not, the insurance company just pays. When it comes to workers’ comp, it’s very much on the side of the injured employee.”

There have also been cases, such as Florida, where once a worker files a claim and they are found to be undocumented, they are quickly deported. Both Numrych and Scaramellino hadn’t heard of that happening in the District of Columbia.

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Check out WorkersCompensation.com’s poll results on illegal immigrants and workers’ comp here, in President and CEO Bob Wilson’s most recent blog post.


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