The workers’ comp system is supposed to be predictable, accountable and biased towards inclusiveness. It’s news when state politicians vote to make their system unpredictable, unaccountable and exclusionary.
That will be the case if the state of Ohio ultimately enacts a bill that the Ohio House of Representatives approved 62-30 on December 5, which prohibits undocumented workers from receiving workers’ compensation benefits.
As reported by Workerscompensation.com’s Phil Yacuboski in a series of state-by-state articles, the laws, court decisions and legal practice regarding work injuries of undocumented workers are often obscure and even contradictory, and rarely a frontal assault on access to benefits as Ohio contemplates.
Who are these workers? According to Pew Research, Ohio has about 95,000 undocumented persons, which roughly translates into about 75,000 workers. Most likely, the great majority work on farms, as day laborers, in residential construction, housekeeping and kitchens. These jobs don’t require a high school degree.
Native Americans living in Ohio without high school degrees for the most part won’t take these jobs, opting for cleaner and safer work such as retail sales and waiting on tables. On balance, these Native Americans incur half the work injury risk than the undocumented workforce. Assuming a lost time injury rate of about 2%, the undocumented workers may incur some 1,500 lost time injuries a year.
If Ohio enacts the prohibition of benefits, these injured workers will most likely just suck it up. The bill sponsors say they want to stick to employers that hire illegals the liability for these injuries. This line of reasoning is a modern version of “let them eat cake.” They would have to file a personal injury suit, which of course would exposure them to discovery and deportation.
To be sure, it is conceivable that a liability suit would succeed. In 2012, Wyoming resident and undocumented worker Omar Romero won a $900,000 personal injury judgment against his employer, who, knowing that Wyoming prohibits coverage for undocumented workers, negligently denied him medical care for a work injury. These unfortunate Ohio illegals are far more likely to be dropped off at a community health center or emergency room and forgotten.
The bill is likely less about workers’ comp and more about the existential fact of undocumented persons in Ohio. What can state politicians do to discourage their presence? They can pass, as some states (most notably Arizona) have done, laws that penalized employers who hire undocumented workers and that empower law enforcement personnel to serve, in effect, as immigration officers. They can pass, as a flock of towns did about 15 to 20 years ago, laws that make it illegal to rent lodging to undocumented persons. (Just about all these housing related initiatives were withdrawn or overruled by courts.)
Or these politicians could induce state anti-fraud agencies to, as Florida’s has done, to arrest undocumented workers who sustained a real injury for identity theft on the grounds that the workers used stolen or borrowed social security numbers. This misfortune befell Florida dairy worker Semi Galdamez Espinosa who was arrested for using a social security number that he naively told the workers’ comp insurer his brother had given him.
An individual upset about the presence of eight million undocumented workers might be rather open to the large scale legal immigration into the United States. The way we think about (and were we to have a chance to expressly vote on) illegal and legal immigration is contorted.
It’s likely that most native-born Americans agree that the country does not tolerate so many undocumented persons, who in percentage of total population are multiples higher than the illegal cohorts in the great majority of western countries.
Polling by WorkersCompensation.com suggests that individual workers’ comp professionals are divided about how much access undocumented workers should have to workers’ comp benefits. But organizations in the workers’ comp industry, from medical clinics to claims departments to case management teams, would have a hard time, to say the least, withholding care and support to one of every ten or twenty work related injuries because it happened to be sustained by an undocumented worker. That is why the Ohio initiative is do deeply disturbing.
ABOUT THE AUTHOR
Peter Rousmaniere is widely known throughout the workers’ compensation industry, both for his writing and consulting experience. Based in the picture perfect New England town of Woodstock, VT, he is a regular on the conference circuit, and is deeply in tune with trends and developments within the industry. His passion is writing and presenting on issues largely related to immigration, and he maintains a blog on the subject at www.workingimmigrants.com.
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