Learn about undocumented immigrant workers’ rights when they are hurt on the job
Immigration is a very controversial topic in American politics these days. Everywhere you turn, there appears to be a discussion or argument regarding what should be done regarding immigration in the United States.
Specifically, the issue revolves around individuals who arrive in the U.S. without proper documentation (sometimes referred to as “illegal immigrants” or “illegal aliens”). These migrants have come to America in a manner that is deemed illegal. This means that they have come here without a visa, or overstayed their visa, green card or other permission that allows them to legally live and work in the U.S.
Many of these people get hard jobs here in the U.S. and provide valuable services to the economy.
As experts commonly note, they pay taxes — including sales tax, state and federal taxes (as they often work under a Social Security number that doesn’t belong to them), and don’t receive many of the benefits afforded to U.S. citizens (such as Social Security, Social Security disability benefits, etc.).
One question that commonly arises is:What happens when an individual without proper documentation gets injured while working in the United States?
Each state has its own specific rules and regulations. In this article, we will explore what happens in Georgia after the undocumented worker is injured on the job.
Temporary total disability
(TTD) benefits for undocumented workers
If an individual without proper documentation is injured at work, they are entitled to temporary total disability benefits if they are taken out of work by the authorized treating physician, or if they are placed on light duty work restrictions that the employer cannot meet.
This is the same procedure for any Georgia worker with proper documentation.
Temporary partial disability
(TPD) benefits for undocumented workers
The issue of temporary partial disability benefits is a bit different from total disability benefits. TPD benefits are available to an injured worker when they return to work after an on the job injury, but earn less money than they did before because of their restrictions. If the undocumented worker returns to work and earns less, then they are entitled to temporary partial disability benefits. However, if the undocumented worker cannot return to the light duty job because of their immigration status, then they may not be entitled to TPD benefits.
An example of this is when an injured worker is returned to light duty work as a driver. In order to be a driver, a proper driver’s license must be presented. If the undocumented worker cannot provide a legal document indicating they are legally allowed to drive, then they will not be owed either temporary partial or temporary total benefits because the reason for the economic loss is due to the immigration status and not the job-related injury.
Calculating the average weekly wage of an undocumented worker
A lot of times, it may be difficult to determine what the average weekly wage of the undocumented worker is, due to numerous factors. For example, if they are working “under the table,” there might not be a record of their employment and discovery will have to be undertaken to demonstrate their actual pay so that we can determine an average weekly wage and therefore, a workers’ compensation rate.
Additionally, employers may know that they are breaking the law by hiring undocumented workers and choose to not be forthcoming in reporting claims to the insurance carrier. This can make it difficult when initially filing a claim, but it doesn’t adversely affect the injured worker.
Catastrophic injuries and workers’ compensation
Workers’ compensation benefits are also available to undocumented workers if the individual is catastrophically injured. If the worker’s injuries are severe enough for them to fall under the definition of O.C.G.A. 34-9-200.1 (g), then they are entitled to the benefits provided to them under that code section. This applies to both medical treatment, indemnity benefits and rehabilitation suppliers. This means that the injured undocumented worker may be eligible for lifetime medical treatment and indemnity benefits for their on the job injury.
A catastrophic injury is defined by Georgia law O.C.G.A. 34-9-200.1 (g) as follows:
(1) Spinal cord injury involving severe paralysis of an arm, a leg, or the trunk;
(2) Amputation of an arm, a hand, a foot, or a leg involving the effective loss of use of that appendage;
(3) Severe brain or closed head injury as evidenced by:
(A) Severe sensory or motor disturbances;
(B) Severe communication disturbances;
(C) Severe complex integrated disturbances of cerebral function;
(D) Severe disturbances of consciousness;
(E) Severe episodic neurological disorders; or
(F) Other conditions at least as severe in nature as any condition provided in subparagraphs (A) through (E) of this paragraph;
(4) Second or third degree burns over 25 percent of the body as a whole or third degree burns to 5 percent or more of the face or hands;
(5) Total or industrial blindness; or
(6)(A) Any other injury of a nature and severity that prevents the employee from being able to perform his or her prior work and any work available in substantial numbers within the national economy for which such employee is otherwise qualified; provided, however, if the injury has not already been accepted as a catastrophic injury by the employer and the authorized treating physician has released the employee to return to work with restrictions, there shall be a rebuttable presumption, during a period not to exceed 130 weeks from the date of injury, that the injury is not a catastrophic injury. During such period, in determining whether an injury is catastrophic, the board shall give consideration to all relevant factors including, but not limited to, the number of hours for which an employee has been released. A decision granting or denying disability income benefits under Title II or supplemental security income benefits under Title XVI of the Social Security Act shall be admissible in evidence and the board shall give the evidence the consideration and deference due under the circumstances regarding the issue of whether the injury is a catastrophic injury; provided, however, that no presumption shall be created by any decision granting or denying disability income benefits under Title II or supplemental security income benefits under Title XVI of the Social Security Act.
(B) Once an employee who is designated as having a catastrophic injury under this subsection has reached the age of eligibility for retirement benefits as defined in 42 U.S.C. Section 416(l), as amended March 2, 2004, there shall arise a rebuttable presumption that the injury is no longer a catastrophic injury; provided, however, that this presumption shall not arise upon reaching early retirement age as defined in 42 U.S.C. Section 416(1), as amended March 2, 2004. When using this presumption, a determination that the injury is no longer catastrophic can only be made by the board after it has conducted an evidentiary hearing.
The rehabilitation supplier appointed to a catastrophic injury case shall have the expertise which, in the judgment of the board, is necessary to provide rehabilitation services in such case.
Medical benefits and PPD rating for undocumented workers
There are two benefits that an undocumented worker receives regardless of whether or not they are eligible for temporary partial disability benefits or temporary total disability benefits. Those are medical benefits and a permanent partial disability (PPD) rating, if one is warranted. These are the same rights that all injured workers can receive with the same restrictions.
All medical bills by an authorized treating physician have to be paid for under the fee schedule as required in Georgia workers’ compensation law (O.C.G.A. 34-9-200). If the injured undocumented worker is eligible for indemnity benefits, then they are also entitled to an independent medical evaluation paid for by the insurance carrier (pursuant to O.C.G.A. 34-9-202(e)).
Lump sum settlements for injured undocumented workers
An undocumented worker can also receive a lump sum settlement for their workers’ compensation case. The same rules apply to the stipulation and agreement. All settlements must be approved by the State Board of Workers’ Compensation as laid out in O.C.G.A. 34-9-15.
When to contact an experienced Georgia workers’ compensation attorney
If you have any questions about this topic or anything else related to workers’ compensation, don’t hesitate to contact an experienced Atlanta workers’ compensation attorney at Gerber & Holder Law.