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.
Carson City, NV (WorkersCompesnation.com) – Regardless of immigration status in Nevada, workers can benefit from basic workers’ compensation benefits under state law.
The Nevada Industrial Insurance Act defines workman and employee to include “every person in the service of an employer under any appointment or contract of hire or apprenticeship, expressed or implied, oral or written, whether lawfully or unlawfully employed, and include but not exclusively: aliens and minors.” It has also been upheld by the Nevada Supreme Court.
“However, they do not have to pay for vocational rehabilitation benefits,” said Jason D. Mills, a workers’ compensation attorney in Nevada since 2000. “The court said that it was illegal to put someone to work when you know they can’t work here legally.”
That portion stems from a 2001 court case Tarango vs. State Industrial Insurance System. Angel Tarango was hurt when he fell off an 8-foot ladder while working for a drywall firm in Las Vegas. After being treated, he was cleared to return to work, but was restricted to lift 50 pounds. The job required a more “vigorous activity,” according to the The Las Vegas Sun newspaper, and he was sent for vocational rehabilitation. However, the court blocked the benefits, writing that he violated federal law.
“However, the case indicated that other compensation is allowed, meaning you can get medical treatment on your claim regardless of your documented work status,” Mills said.
The one major problem with workers’ comp law in Nevada: Because of that case, there has never been a clear stipulation as to what happens regarding short-term disability when it comes to so-called “light duty.”
“It’s an open question because most insurers say they are not entitled to it using the Tarango case as justification,” he said. “There’s other arguments that say the statute says your short-term disability terminates only when the doctor says your disability is gone or if the employer doesn’t offer ‘light duty.’”
Mills said in several cases, he’s pressed the issue, and has been examining the law to see if somehow they can argue that short-term disability pay should be provided. He said he’s often litigated the cases to where someone backs down and it is paid, depending on the situation.
“It’s really an unknown question and it’s not known how the courts will deal with this,” he said. “Most of time they (the insurance companies) deny it. We are chipping away at the issue.”
According to Pew Research, Nevada has about 210,000 illegal immigrants, according to numbers compiled in 2014. It’s estimated that 61 percent come from Mexico. With 7.6 percent of its population as illegal, Nevada has more illegal immigrants than any other state. California and Texas rank second and third.
Paul Goecke, executive vice president of Sundance Insurance in Las Vegas, said he deals with workers’ compensation cases involving undocumented workers “all of the time.” He didn’t know what it costs the system, but added that vocational training is not paid for under the current system.
Could the system change? Goecke said it was unlikely legislation would be passed to bar undocumented workers from receiving workers’ compensation benefits in Nevada.
“I can’t imagine in today’s environment, we’d ever see it,” said Goecke. “I doubt it.”
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