By Melissa Davlin
In 2010, Elfego Marquez was tasked with painting an area over a tall doorway. The problem: There were no ladders available at the job site. After consulting with his boss, he stacked two buckets on top of each other, then climbed up to get to work.
He fell, landing on a concrete floor and suffering injuries to his shoulder and wrist that required multiple surgeries. Marquez, unable to lift his right arm above his head, was told by his doctor he couldn’t return to work.
He received temporary disability benefits, and his medical bills were paid. But when he sought permanent disability benefits, his employer, Pierce Painting, and the State Insurance Fund resisted. Why? Marquez is undocumented.
Undocumented workers prop up parts of Idaho’s economy, mostly working in physically demanding — and often dangerous — jobs. In the past, the Idaho Industrial Commission, which regulates workers’ compensation in the state, has denied permanent disability benefits based on legal status.
But last year, the commission ruled Marquez could, in fact, pursue permanent disability, prompting an appeal from the State Insurance Fund and bringing the case before the Idaho Supreme Court. Whatever the court decides, it will affect how the state handles claims from undocumented workers in the future — and could affect whether undocumented employees seek help for their injuries in the first place.
When workers are injured, there are a number of benefits they can seek, depending on the severity of the injury and how much it impairs their work.
Marquez received some temporary benefits from Pierce Painting and the State Insurance Fund following his accident, and his medical bills were paid in full.
But the sticking point came when Marquez sought permanent disability benefits when his physician told him he could no longer paint.
Permanent physical disability benefits have a higher statutory threshold to meet. Other types of benefits assume the injured worker will eventually be able to return to work, either at the same job or in another field. Not so with permanent disability.
The fight over Marquez isn’t so much about how hurt he really is. Rather, the State Insurance Fund’s argument hinges on a legal technicality: In order to grant permanent disability, the Industrial Commission must consider whether the employee can reasonably get another job.
During Wednesday’s oral arguments, attorney Clinton Casey said because Marquez is undocumented and isn’t legally able to get a job in the United States in the first place, the statute automatically precludes him from seeking permanent disability.
The Industrial Commission agrees Marquez’s legal status is a factor — one that would seemingly play in Marquez’s favor. In its ruling, commissioners pointed to the limited work available to undocumented workers. Not only are there fewer jobs available, but those jobs are almost all physically demanding.
“Remember, the pre-injury labor market for such an individual is small, and probably consists of the meanest type of unskilled manual labor,” the decision says. “Therefore, if disability is measured by considering the actual pre-injury and post-injury labor markets for an illegal alien, it seems likely that higher disability awards will result than would be the case for a similarly situated documented laborer.”
That’s the case for Marquez, who has a college education and taught in Mexico for several years. But those credentials don’t transfer to Idaho, leaving him and other undocumented workers to pursue mostly manual labor jobs in the US.
Marquez couldn’t be reached for comment.
Shadow economies, legal fictions
In the past, the Industrial Commission has ruled against undocumented workers. Take a look at this key passage from its 2011 decision in Otero v Briggs Roofing Company:
“Before the accident, (Otero) had no access to the labor market. The same is true after the accident. In effect, the accident, while it did affect (his) physical capacities, has not affected his ability to engage in gainful activity in his relevant labor market. He did not possess that ability in the first place.”
In the 2017 decision on Marquez’s claim against Pierce Painting, the commission walked that back, saying it isn’t responsible for enforcing federal immigration law. (“Had it been enforced by those with the authority to do so,” commissioner Thomas Baskin wrote, “we would not now be struggling with how or whether to apply state workers’ compensation law to what common experience tells us is a shadow economy of some consequence.”)
Instead, the commission says it’s responsible only for state workers’ compensation. “We cannot, in good conscience, create a two-tiered system of compensation, when all workers are intended to be protected under the (law),” the decision says.
(Chairman Thomas E. Limbaugh dissented with his fellow commissioners, saying Marquez’s legal status “entirely eclipses” the injuries sustained on the job as a factor in his future employment.)
Attorney James Arnold, who represented Marquez in Wednesday’s oral arguments, pointed to the “legal fiction” that propped up the commission’s previous denials. Employers keep hiring undocumented workers, who keep coming to Idaho without documentation because of the way the country’s immigration system and guest worker programs are set up.
“That’s why they continue to be employed,” Arnold said. “And they’re going to continue to be employed, and to (ignore that) is a legal fiction.”
Arnold said he has represented other undocumented workers have been injured on the job. Many settle claims in mediation.
This decision, however, will give guidance to the Idaho Industrial Commission on how to handle future claims. By paying benefits to injured undocumented workers, “we’re not necessarily endorsing future unlawful activity,” Arnold argued. “We’re accepting a reality… that there are approximately 35,000 undocumented workers in this state.”