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Two wrongs don't equal a jackpot

A workplace accident in Marlborough, Massachusetts has brought to light yet another problem caused by illegal aliens.

Valdecir Rodrigues, a 38-year-old Brazilian who came here on a tourist visa back in early 2003, but never bothered to leave. Instead, he got a job (illegally), then he and his family set up house, intending to stay. He had a variety of jobs, but that all came to an end Monday when he was stacking slabs of granite in a warehouse. The stack collapsed on him, killing him.

Now comes the complications. For one, he's being buried back in Brazil. His widow would like to go with him, but she fears (and rightfully so) that she wouldn't be allowed back into the country. (Apparently none of the children were born here, depriving her of the all-important "anchor baby," the one who has citizenship.) For another, she has filed for a workman's compensation claim.

Now, I am in no way happy that Mr. Rodrigues died. In fact, I'd like to see OSHA go in there and investigate thoroughly, and quite possibly levy a very hefty fine on his employer. Further, I'd like to see ICE and other officials see just how many other illegal aliens they are employing, and if justified impose more fines and maybe even a jail sentence.

But the worker's comp claim should be denied.

Mr. Rodrigues was working illegally. When you step outside the law, you deny yourself access to certain legal protections and legal benefits. He made his choice, and as tragic and heartless as it may sound, his family has to live with the consequences of his decision.

And the Massachusetts law to the contrary ought to be struck down. Workers' comp funds are paid by employers, as a payroll tax. Illegal aliens either don't pay taxes entirely, or do so under a fraudulent identity. Either way, they have actively sought to avoid that as part and parcel of being a legal worker. To pay them despite this is to rob those who are working legally, paying their taxes, and following the rules.


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Comments (24)

Got to disagree with you Ja... (Below threshold)

Got to disagree with you Jay... workman's compensation is an insurance program with premiums paid by employers based on their payroll (with a risk factor thrown in). The employer paid the premiums for this worker (unless he was off the books) on behalf of the worker... it makes no more sense to deny the worker's family the insurance policy than it does to deny them a claim against the employer for pay earned but not paid.

Now, if as a policy decision, you want to allow employers to not pay illegal aliens, forcing the illegals to accept a huge risk, then that's a different thing altogether...

But why should she profit f... (Below threshold)

But why should she profit from an illegal act? Deport her and her children. She and her family are here illegally, despite what the state law is, she is in violation of a Federal law.

Actually, the answer is sim... (Below threshold)

Actually, the answer is simple:
1) Approve the Worker's Comp Claim
2) After they recieve the funds, deport the family.
3) Have the Company re-imberburse the insurer for the full amount.

Steve's right. It seems as... (Below threshold)
John:

Steve's right. It seems as though Jay is raising several issues and disposing of them all with one solution.

Mass may be different from Alaska, but here workers comp is an insurance policy, required by the state, and the amount of the premium is based on anticipated payroll and the relative risk of injury inherent to the job. When the employer decided to hire the illegal alien, he chose to pay him for his labor and therefore is required to insure him against workplace injury. To make the argument that his status as an alien should shield the workers compensation insurance company from making him whole in the event of an injury is tantamount to saying he should not be remunerated for his services.

The fact that he may or may not pay income taxes is irrelevant, as is the fact that he and his employer are definitely paying social security and medicare taxes on the illegal alien's wages.

Sanction the employer and deport the employee if they are illegal.

Oh! I like kristian's solution. The insurance company could a have provision in the policy that the employer is responsible for injuries sustained by illegal employees. You lawyer-types can check us on that.

You gotta push the wife dow... (Below threshold)
moseby:

You gotta push the wife down by her face at some point ...

If I acquire an insu... (Below threshold)
MikeB:


If I acquire an insurance policy under false prentenses and pay premiums, should the insurance company pay a claim if in the process of investigating the claim they discover the false pretense ?

The man wasn't legally allowed to be here nor was he legally allowed to work here, so while he did pay the premiums (or for those bad at economics, 'his employer did on his behalf'), he did so under the pretense that he (1) was here legally and (2) was allowed to work here legally.

Hmmmm."The fact th... (Below threshold)
ed:

Hmmmm.

"The fact that he may or may not pay income taxes is irrelevant, as is the fact that he and his employer are definitely paying social security and medicare taxes on the illegal alien's wages."

And if the company is paying the guy off the books?

Would the company then be including his wages into the worker's comp computations? Well, no.

My solution?

1. Deport widow and family.
2. Indict company owner, directors and officers for violations of illegal alien employment.
3. Fine the company equal to 20 years wages.
4. Warn the company that another incident of employing an illegal alien will result in the complete and absolute forfeiture of the entire company and all of it's assets.

I like Kristian's idea, too... (Below threshold)

I like Kristian's idea, too - it appears to be a possible, workable compromise, even if it drives me nuts to allow the family to benefit. If someone is doing something illegal, they ought not to be allowed financial benefit on something connected to their illegal action.


And Jay Tea's comment

(Apparently none of the children were born here, depriving her of the all-important "anchor baby," the one who has citizenship.)
makes me wonder if there ought to be a law denying citizenship to children born to illegals here. It rubs me the wrong way, even if it paints me as a hard-hearted, eliteist conservative whacko.

I'd love to see workable, actionable, enforced laws which close down, eliminate and destroy incentives to illegal immigration.

*grf!*

And in a perfect world, I'd be awakened each morning by my beloved husband adoringly serving me my mocha latte and english muffins in bed. Ah, well, a lady can dream....

;-)

Thanks, Jay Tea - great post (oh, and are there links?)

-- R'cat
CatHouse Chat

Agreed that the dead guy is... (Below threshold)
John:

Agreed that the dead guy is/was illegal. Wife, fam should be deported. Employer sanctioned.

The question, however, is does the wife have a claim against the company or the company's workers comp carrier for her husband's injury/death?

Assuming Jay's right, and it was a job-related injury, the answer is yes. How many rights are you willing to take away from this illegal alien?

What if the employer walked up and shot the illegal alien dead? Is that actionable by the surviving spouse, or does the man's immigration status determine that a crime has not been committed?

the decedent's estate and s... (Below threshold)
tim:

the decedent's estate and survivors may also have other legal claims, despite their immigration status, such as product liability and/or negligence. the employer, at a minimum, should be on the hook for the work comp claim. that doesn't mean the w/c carrier should pay the claim and likely would deny coverage anyway. the employer should simply cover that which the legislature requires of work comp carriers under the same circumstances. in addition, the employer should be investigated and punished for employing illegals but that is the whole national debate regarding enforcement of immigration laws.

it appears to be a possi... (Below threshold)

it appears to be a possible, workable compromise, even if it drives me nuts to allow the family to benefit.

I am not a bleeding heart liberal, nor some touchy feely hippy. But to say the family is benefiting by having the husband/father killed is way too strong for me.

The people 'benefitting' from the illegal worker was the company and the company's customers. It seems a little harsh, if not logistically difficult, to punish the customers. Logically, then, the company has to take the burden.

No workers compensation for... (Below threshold)
spurwing plover:

No workers compensation for illeal aleins or the relitives its time to put a end to illegal imagration

MikeB is closer to the trut... (Below threshold)

MikeB is closer to the truth of it, I think. In order to be hired on the books you have to sign a form affirming that you have the legal right to accept employment in the United States.

If workers' comp premiums were being paid on the basis of Rodrigues' employment, he committed a federal crime by signing that form. I know perjury is widely regarded as little more than an Animal House prank these days, but insurers have been known to refuse to pay benefits if there's even the slightest little error in the paperwork.

Why not for a federal offense?

Hold on a second everybody.... (Below threshold)
Ed:

Hold on a second everybody. We layman can't really figure out this complicated insurance claim because...we're not lawyers!!!! Where's that lawyer who knows everything??? Oh, Mikey!!!! Paging Mike!!! He's super-lawyer and has reasoning powers far beyond that of laymen.

Sorry, I meant Mark, not Mi... (Below threshold)
Ed:

Sorry, I meant Mark, not Mike.

I'm here. But first I've g... (Below threshold)
Mark:

I'm here. But first I've gotta say this: Ed, you're a moron with no reading comprehension and you ought to be deported from this planet.

I'm with Steve Sturm, John and Kristian.

There are potentially major problems with MikeB's and McGeehee's posts, but they're curable for future cases. The decedent is unlikely to have entered into any agreements, or made any representations, to the W/C carrier. The policy is between the employer and the carrier, and it is the employer who would have made any misrepresentations. Therefore, the carrier's remedy is against the employer and not the decedent's family. As for McGeehee's thought about employees certifying their eligibility to work when initially hired, that is not a uniform practice. But, employers who do not comply should be prosecuted.

The cure would be simple (if W/C carriers were not subject to liberal legislatures): Simply include a provision in the policy excluding coverage for illegals and/or people who falsify their eligibility to work. Those illegals excluded from coverage are always free to sue the employer if they are denied W/C benefits.

In most states the WC contr... (Below threshold)
Mark:

In most states the WC contract is generated by law not contractual obligation. Meaning there is a statute, and it is that statute that the insurer and the company are contracting about. The cure is for the states to choose whether they will treat illegals as covered employees for the purposes of the statute.

I too like the idea of sticking the employer with the ultimate bill. The insurer would still process the claim but the employer would pay the actual costs.

Ultimately this is an issue for the various State legislatures.

I should also say that while I have experience in Oregon, Washington and California WC law I do not have any idea on the structure of Mass law.

Maddog

Another thought:Fr... (Below threshold)
Mark:

Another thought:

From my understanding, there are no states where workers compensation pays benefits for pain and suffering. Rather, they only pay for verifiable economic damages such as medical expenses, vocational rehabilitation expenses, and lost wages. Thus, the "jackpot" element of pain and suffering is never available through the system. That's part of the trade off for not having to prove fault.

It seems to me that illegal aliens should be eligible for the medical expenses and perhaps even vocational rehabilitation. They should be restored to a whole illegal alien. But benefits for lost wages should not be paid to illegals because they're not entitled to work here in the first place. A fairer system would be to limit the lost earnings benefits to the amount aliens would earn in the home jurisdiction (this is California's rule for civil lawsuits).

I realize many of you feel illegals should have no access to our courts or other legal remedies, but that's kinda silly. If that were the system, we would be free to knowingly expose them to extreme risks of grevious bodily injury, with no recourse whatsoever. We should deport the bastards rather than maim them.

Oh crap, are there two lawy... (Below threshold)
Mark:

Oh crap, are there two lawyers here named "Mark?"

One more thing, Jay. The a... (Below threshold)

One more thing, Jay. The anchor baby isn't guaranteed citizenship if the parents are here illegally. In fact, if this was enforced, it may slow some of the illegal migration.(but probably not, it's all about opportunity)

She'll get the workman's co... (Below threshold)
Garand fan:

She'll get the workman's comp claim. In the Peoples Rebublik of California, Sante Fe RR has been paying off illegals for years for injuires they sustained in falling from moving trains they've hitched rides on. One guy got $25,000 for losing a foot, then he skipped out on the hospital bill.

Congressman J. D. Hayworth,... (Below threshold)
-S-:

Congressman J. D. Hayworth, Arizona, has introduced legislation that "proposes zero tolerance for illegal immigration" (read his press release about it):


"Hayworth Introduces Enforcement First Bill"

Rep. J.D. Hayworth (R-AZ) introduced the Enforcement First Immigration Reform Act of 2005 (H.R. 3938) on Sept. 28 with 23 original cosponsors.

This comprehensive legislation, among other things:

--Promotes vigorous, coordinated interior immigration enforcement

--Cracks down on illegal employment and strengthens workplace enforcement

--Reduces identification fraud Improves border security

--Ends the practice of granting U.S. citizenship to any child born in the United States unless at least one parent is in the U.S. legally

--Modifies the composition, but not the amount, of legal immigration. (The bill increases employment-based immigration visa categories by 120,000 visas a year, while eliminating the visa lottery program (55,000 visas) and the adult sibling visa category (65,000).)

I like kristian's plan.<br... (Below threshold)
tyree:

I like kristian's plan.
The "Anchor Baby" ploy has to be stopped also. In my city in Southern California the local high school was 93% white in 1979. Now it is 65% hispanic. My daughter quit her job because the Mexican girls were so mean to her and the other Americans. They didn't know she can understand enough spanish to know what they were saying about her.I was in a corner market yesterday and no one (customers or counter people) inside spoke English well enough to answer my questions. The people next door are nice but in the 18 years we have lived here there has been a baby in the house every year. Another cousin moves north, lives there for a year, has a child and goes off to a more permanent address. I wish someone would just give me a list of all the laws that we are not enforcing today. If they don't have to follow immigration law, why do I have to pay money to the IRS? If any of you currently live in an area where there are few illegals, start fighting this now. It is hard to live 3 miles from where you grew up and be able to count the familiar places on two hands. It is not like a hurricane, but my life has been changed and it hurts.

This is about first post on... (Below threshold)
Ag:

This is about first post on this matter...

Dear Jay Tea:

The WC is payed by the employer, it's a employee insurance, it doesn't matter if he is legal or not!!!

You said "But the worker's comp claim should be denied." How silly...

You should say "I wouldn't like to see the worker's comp been paid in cases like this"

But it will, it's the law.

The immigration is a reality, legal or not.

If you can't stand the heat leave the court!!!




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