Disability Law

Immigration Status and Drugs Pose Problems for Paralyzed Worker

By David A. McCranie, Esq.

The problem of illegal immigration continues to spill over into the area of workers' compensation law.  Take the tragic case of Victor Leon.  Victor is an illegal immigrant who, while working for Altec Roofing on a construction project in Palm City, fell off the roof of a three-story building.  The accident resulted in his permanently paralysis. You can read a newspaper account of his story here.

Victor says that his employer knew all about his immigration status and that before his accident they even helped him to obtain a fake social security number.  The newspaper account suggests that all of this puts him "at the crux of the debate" about his rights right to receive workers' compensation benefits as a result of his accident. 

But at this point, absent further action by the legislature, that debate is actually over.  The First DCA has now held that using a fake social security number just to obtain employment does not justify the forfeiture of an injured worker's right to workers' compensation benefits for an on-the-job accident.   Rather, §440.09(4)(a) requires that an injured worker make a false statement "for the purpose of securing workers' compensation benefits" before the ultimate sanction of forfeiture may be imposed.  See Matrix Employee Leasing v. Hernandez, 975 So.2d 1217 (Fla. 1st DCA 2008).  So unless there are other facts about the case which weren't reported, his illegal status does not affect his right to workers' compensation benefits.

But Victor has another problem.  A post-accident drug test revealed the presence of cocaine and marijuana in his system.  Section 440.09(3) says that workers' compensation benefits for an otherwise compensable accident are not payable if the injury "was occasioned primarily. . . by the influence of any drugs. . . not prescribed by a physician."  And §440.09(7)(b) creates a presumption that the injury was occasioned primarily by the presence of a drug when a post-accident test confirms its presence in the worker's system at the time of the accident.

Apparently, Victor has retained an expert who has testified that the drugs in his system at the time of the accident did not actually impair him.  But rather than seeking an adjudication of his right to workers' compensation benefits before the judge of compensation claims, Victor took another approach.  After initially filing a petition for benefits, he voluntarily dismissed that petition and instead filed a tort claim against his employer in circuit court - evidently on an estoppel theory.  That is, Victor argues, having elected to controvert the compensability of his accident under the Florida Workers' Compensation Law, the employer/carrier should now be estopped to claim workers' compensation immunity to a claim for tort liability. 

Unfortunately for Victor, the courts haven't really bought into this estoppel argument lately, and the circuit court granted Altec's motion for summary judgment.  And, citing Tractor Supply Co. v. Kent, 966 So.2d 978 (Fla. 5th DCA 2007), a case which I discussed here and here, the Fourth DCA last week affirmed that decision.  So as far as any remedy against Altec Roofing is concerned, I suppose it's back to the workers' compensation forum for Victor at this point.

Full post as published by Florida Workers’ Compensation Law Blog on April 27, 2009 (boomark / email).