By Gabriel Pilonieta-Blanco
El Tiempo Hispano
A controversial decision of the Superior Court of Delaware provides that a worker, although being deported, does not lose the right to compensation
In October 2012, the Superior Court Judge of Delaware, Jerome O. Herlihy, ruled in the case of Saúl Melgar Ramírez, 47, who had been deported to Honduras, that he is entitled to receive compensation for an accident that occurred while working for a property preservation and maintenance company.
This resolution is explained by attorney Janyd Torres in this conversation with El Tiempo Hispano.
Janyd is a young lawyer who graduated in Puerto Rico in 2010 and has passed the bar exam to practice in Delaware, Pennsylvania and New Jersey. She works in the firm of Doroshow, Pasquale, Krawitz & Bhaya, which has offices throughout the state.
Torres explained that the importance of this decision is that if a worker, whether he/she gave false information about his/her name and social security number or even if he/she has been deported for being in the country illegally, has an accident while at work, is still entitled to compensation including payment of lost wages and medical expenses.
"This court decision has been a great achievement for Hispanic workers because it means they will not lose their rights for having used false identification or are been deported." The measure, continues the attorney, is also important because in most cases undocumented workers think they have no rights, and now it has been established that, at the time they are hired, they also acquired the contract rights involved.
"One way in which the worker may lose benefits, is if he/she provided false information about their health condition, so the employer based its decision to hire the individual on that information and there is a connection between the false information and the later injury."
Using false identification information has no causal connection with an injury suffered in an accident at work, therefore does not disqualify the individual from receiving or continuing receiving their workers' compensation benefits.
The employee may lose benefits if he/she refuses to undergo a medical evaluation required by his/her employer under the Workers' Compensation Act. This resolution determined that the fact that the employee has been deported and cannot be medically evaluated in this country is no reason for termination of benefits. In Ramírez's case, he could be medically evaluated in his home country once deported, and therefore he did not refuse to undergo medical evaluation.
Although her specialty is bankruptcy, Torres wants the Hispanic community knows about this decision that the firm she works for obtained in October 2012.
The partners Arthur M. Krawitz and Jessica Welch successfully argued in court that an undocumented worker is entitled to receive benefits if they have an accident during while on duty regardless of their immigration status.
In short, the case considered in court was that of Saúl Melgar Ramírez, deported to Honduras and that worked for Delaware Valley Field Services, a property preservation and maintenance company to properties that have been subject to bankruptcy by the banks.
In his 29-page opinion, Judge Herlihy noted it was a “case of first impression,” meaning Delaware courts have never before ruled on issues raised in this litigation.
According to court documents, Ramírez entered the United States in November 2002 and began working for DVFS in April 2010. Initially he was paid in cash until January 2011 when he began receiving a paycheck. That same month, on the 20th, while working he fell from a ladder and had his back badly hurt.
This accident happened while his boss was present. He was taken immediately to the ER and then underwent treatment and the doctor diagnosed it as "totally disabled" and said that Ramírez would need surgery as therapy was not sufficient for recovery.
On January 31st he was told he could not come back to work and that for the insurance company to take over the payments, he needed a social security number.
Ramírez bought for $180 a fake number and handed it to his employer, who a month later, after finding out that the number was false, contacted the federal immigration authorities. This led to Ramírez being deported in March 2011.
Thereafter Ramírez testified before the Industrial Accident Board, admitting he had been in the U.S. illegally and had lied when filling out the form I-9 (verification of identity of the worker), but also said the company knew that he had no papers…
Finish reading Undocumented do not lose their rights