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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Santa Fe, NM (WorkersCompensation.com) – In New Mexico, workers’ compensation benefits for undocumented workers materialized through case law, not through any specific state statutes. The case, Gonzalez v. Performance Painting, allows an undocumented immigrant worker to be entitled to full workers’ compensation benefits.
“Undocumented workers are entitled to receive medical benefits for their injuries, as any other injured worker in the state,” said Diana Sandoval, spokeswoman for the New Mexico Workers’ Compensation Administration.
Sandoval said in the court case, the appellate courts addressed whether a worker’s undocumented status permanent partial disability modifier qualifies as benefits.
“The issue of eligibility for other benefits comes into question when an employer ‘knew or should have known’ the worker’s status at the time of hire,” Sandoval said. “If the employer knew the worker was ineligible to legally work in the country and hired anyway, or, if the employer did not do their due diligence in checking and verifying status, that employer may be required to pay disability benefits they would otherwise pay to legal status workers.”
The worker, Jesus Gonzalez, was an illegal immigrant from Mexico who came to the United States twice — once in 2003 and again in 2005. He was hired in February 2006 as a painter’s helper and in August of 2006, he fell off a ladder, injuring his shoulder. He needed multiple surgeries and physical therapy to recover. Gonzalez eventually went back to work, but because of physical restrictions, he applied for workers’ comp benefits in 2008. Gonzalez was refused a return to work order from his employer because of his immigration status, and the judge ruled in his favor because the employer did not comply with immigration law.
In some states, some undocumented immigrants have been caught using false Social Security numbers when filing a claim. In Florida, some have been deported once they were found to be filing a claim, while in other states like New Jersey, the Social Security number is not an issue.
In New Mexico, Sandoval said if workers, legal or not, would rather not use their own Social Security number, the state would issue an alternative number.
“Those numbers are then attached to that worker for the life of the claim,” she said, “and any others that may be filed in the future.”
She said she knew of no cases where the state had encountered stolen identities. An enforcement bureau does investigate cases of fraud to the system.
New Mexico does not track cases of claimants who might be deported after a claim is settled.
