OR Statute Silent on the Words ‘Illegal, Legal,’ and ‘Aliens’

12.28.2017


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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Salem, OR (WorkersCompensation.com) – In Oregon, all workers are covered under workers’ compensation, with few exceptions. Those exceptions are vocational retraining, as a worker must prove they are a documented U.S. resident.

The Oregon statute is silent on the words “illegal” and “legal” as well as “aliens.”

“The law simply says that employers must carry coverage for all subject workers – and almost all workers are subject,” said Aaron Corvin, spokesman for the Oregon Occupational Safety and Health Administration. “Some exceptions include sole proprietors, partners, private residence workers, and federal workers. There is no exception from coverage based on immigration status.” 

According to Pew Research, Oregon has about 130,000 illegal immigrants, according to information gathered for a 2014 study, which accounts for about 3.2% of the state’s population. About 71% of those undocumented workers are from Mexico.

“Immigration status is also not a factor in deciding whether a claim is compensable,” Corvin said. “In most cases the employer and their insurer process claims and the Oregon Workers’ Compensation Division is not involved in claim processing. Even if the employer or insurer becomes aware that a claimant is undocumented there is no reason to share that information with our agency, and we have no authority to ask for or collect information about immigration status.”

Two cases in Oregon helped decide the current statutes.

In 1997, Gerardo Alanis sued for workers’ compensation benefits after hurting his knee while working as a tree pruner. After finding out Alanis provided false work documentation, his employer Barrett Business Services, stopped payment on his partial disability compensation. The court ruled that workers are not entitled to TTPD based on a full TTD rate just because they can’t work due to their illegal status.

In 1997, Alfredo Hernandez injured his foot while working as a Christmas tree harvester for the SAIF Corporation. After being cleared for a modified job, Hernandez was unable to provide a valid Social Security Number. The court ruled that “undocumented workers who can perform ‘modified work’ for a worker are to have their benefits reduced to reflect the income that they would have received, but for their undocumented status,” according to a state-by-state roundup from the Matthiesen, Wickert, and Lehrer law firm in Wisconsin. 

In the Hernandez case, the Oregon Court of Appeals wrote:

“The legislature intended employers of undocumented workers to be able to get the benefit that is available to employers of workers who are able to perform modified work. That means that undocumented workers who are physically able to perform modified work for an employer are to receive TPD payments that reflect a reduction for the income that the workers would have received but for their undocumented status.” 

“Undocumented workers in Oregon are entitled to all of the benefits in a workers’ comp claim with the exception of vocational retraining and certain offers to return to work that require documented status,” said Lauren Casler, a spokeswoman for SAIF Corporation in a statement to WorkersCompensation.com. “SAIF processes each claim with the initial assumption that the injured worker is documented but, if we learn of credible information to the contrary, we process benefits carefully related to the two exceptions, in accordance with the law.”


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