Court Upholds Workers' Comp Award to Illegal Immigrant

August 1, 2006 ( - The Appellate Division for the Third Judicial Department of the New York State Supreme Court has upheld a Workers' Compensation Law Judge (WCLJ) award of benefits to an undocumented worker.

In its decision, the appellate court said that Jose Hernandez admitted to the WCLJ that he bought his Social Security card in order to obtain work in the US. However, the WCLJ established a case for Hernandez’ injuries and awarded him benefits.

The court also said the issue of Hernandez’ illegal status was not brought before the WCLJ by his employer or its insurance carrier.

After the award was issued, Hernandez’ employer and its workers’ compensation insurance carrier appealed the decision, saying the US Supreme Court determined the Immigration Reform and Control Act pre-empted the Workers’ Compensation Board policy of ignoring employees’ legal status when determining the right to benefits.

According to the opinion, the Board is “not obligated to consider” an issue that was not presented to it in a hearing to determine benefits. Since the issue was not raised to the WCLJ prior to the appeal, the court said, “Under these circumstances, we cannot say that the Board abused its discretion in refusing to consider the issue.”

The opinion in Hernandez v. Excel Recycling Corp., et al. is here .