November 13, 2014
JOSE CAMPOS, Appellant-Below, Appellant,
DAISY CONSTRUCTION COMPANY, Appellee-Below, Appellee
Submitted September 24, 2014
Case Closed December 2, 2014.
Court Below: Superior Court of the State of Delaware in and for New Castle County. C.A. No. N13A-07-002 A.L.R..
Timothy E. Lengkeek, Esquire (argued), Erika R. Caesar, Esquire, Young Conaway Stargatt & Taylor, LLP, Wilmington, Delaware, for Appellant.
John Morgan, Esquire (argued), Anthony N. Delcollo, Esquire, Heckler & Frabizzio, Wilmington, Delaware, for Appellee.
Before STRINE, Chief Justice; HOLLAND and VALIHURA, Justices; BOUCHARD, Chancellor; CROWELL, Judge,[*] constituting the Court en Banc.
STRINE, Chief Justice:
Jose Campos was injured while working for Daisy Construction Company (" Daisy" ). While Campos was receiving total disability payments from Daisy, Daisy performed an investigation of his social security number at the request of its workers'
compensation insurance carrier and discovered that Campos was an undocumented worker. When Campos could not provide a valid number, Daisy terminated his employment. Around the same time, Daisy hired a doctor to re-evaluate Campos' medical condition. The doctor concluded that although Campos remained partially disabled, he could perform " light duty" work with restrictions. Daisy then filed a petition with the Industrial Accident Board (the " Board" ) to terminate Campos' total disability benefit payments. The Board granted Daisy's petition because Campos was physically capable of working and therefore was not totally disabled. The Board also found that Campos was not eligible for partial disability benefits, reasoning that Daisy had met its burden of showing that Campos had no decrease in earning capacity by testifying that Campos would be eligible for light duty jobs at Daisy at his pre-injury wage rate if he could provide a valid social security number. The Superior Court affirmed the Board's decision.
We conclude that the Board erred when it found that Campos was not eligible for partial disability benefits. To avoid making these payments, Daisy was required to prove that Campos did not have reduced earning power, which required a showing of job availability. Daisy's statement that it would re-hire Campos if not for his immigration issues was insufficient to demonstrate job availability because the job was not in fact available to Campos to take. If we were to hold that Daisy's testimony constituted sufficient proof of job availability, an employer could always hire an undocumented worker, have him suffer a workplace injury, and then avoid partial disability benefit payments by " discovering" his immigration status, offering to re-employ him if he could fix it, and claiming that a job is available to him at no loss in wages. This outcome would be contrary to the Workers' Compensation Act and our case law interpreting it, including Delaware Valley Field Services v. Ramirez, which prevents employers from depriving undocumented workers of employment benefits. It would also disserve federal immigration law by encouraging employers to hire undocumented workers in order to reduce their expenses for workplace safety and employee pay and benefits. Finally, this result would cause workplace safety for all Delaware workers to suffer, because employers would not bear the full costs of workplace accidents and therefore would have less incentive to invest in safety measures.
Accordingly, Daisy must continue to pay partial disability payments until it can demonstrate that Campos has no decrease in earning power from his workplace injury, or until the statutory period for partial disability benefit eligibility expires. Federal restrictions that prevent employers from hiring undocumented workers may make it more difficult for Daisy to prove job availability, but any difficulty is appropriately borne by it as the employer, who must take the employee, Campos, as it hired him.
In September 2008, Daisy hired Campos, who speaks almost no English, without verifying his social security number. The record supports an inference that this may have been a common practice at Daisy and that some of Daisy's 150 employees are still undocumented workers. Daisy
points out that it now uses the Department of Homeland Security's E-Verify system to check the social security number provided by each new employee, in compliance with the Immigration Reform and Control Act of 1986 (" IRCA" ). But when Daisy hired Campos, it was not using the E-Verify system, even though Congress had previously authorized the program for use in all 50 states.
Campos worked for Daisy for three years before he was thrown off the back of a truck while working on a traffic crew, resulting in permanent impairment of his shoulder and back. He returned to work after a four-day hiatus but continued to experience considerable pain from his injuries. Campos eventually underwent shoulder surgery, after which he did not return to work. At that point, Daisy placed Campos on total disability at a compensation rate of $474.30 per week.
Around this same time, Daisy investigated Campos' social security number at the request of its worker's compensation insurance carrier. This investigation was limited to Campos only. That is, Daisy did not check (and their counsel candidly admitted at argument, has not checked) the social security numbers previously provided by any of its other 150 employees. The investigation of Campos revealed that the social security number he had given Daisy was not valid. When Campos was not able to provide a valid social security number, Daisy discharged him. Shortly thereafter, Daisy hired a doctor to re-evaluate Campos' condition, and the doctor concluded that although Campos was still impaired, he was physically capable of returning to light duty work with restrictions. Daisy then filed a petition with the Board seeking the termination of Campos' total disability benefits because Campos was physically capable of returning to work.
The Board granted Daisy's petition, reasoning that Campos was no longer totally disabled because he was physically capable of working and therefore was not displaced from the workforce. The Board also determined that Campos was not eligible for partial disability benefits. The Board found that Daisy had met its burden to show that Campos had no decrease in earning capacity because Daisy's risk manager testified that light duty jobs were available at Daisy at the same wage rate that Campos had earned previously and that Campos would be eligible for these jobs if he could provide a social security number. Because Campos could have returned to work at the same wage rate but for his status as an undocumented worker, and because immigration status is not taken into account when determining a person's entitlement to benefits, the Board found that Campos was not entitled to partial disability benefits. The Board did find that Campos was eligible for permanent
impairment compensation for the loss of the use of his shoulder under 10 Del. C. § 2320(10)(b) and awarded him a lump sum payment from Daisy of $18,972.
Campos appealed to the Superior Court, contending that he was improperly denied eligibility to receive partial disability benefits because Daisy had not met its burden to show that a job was in fact available to him, and thus, had not demonstrated that he had no loss in earning power. On January 16, 2014, the Superior Court affirmed the Board's decision, holding that Campos did not qualify for partial disability because his inability to work stemmed from his lack of a valid social security number and not from a work-related injury.
This appeal followed.
On appeal, the Supreme Court reviews decisions of the Industrial Accident Board to determine if the decision is free from legal error, and whether the agency's decision was " supported by substantial evidence on the record before the agency."  Errors of law are reviewed de novo.
Daisy argues that the Superior Court was correct to conclude that Campos was ineligible for partial disability benefits because Daisy was willing to employ him at his pre-injury wage if he could get a valid social security card and thus had demonstrated that work was available within Campos' restrictions at the same wage rate. Campos, on the other hand, argues that he is now being denied partial disability benefits due to his immigration status, contrary to the Superior Court's holding in Delaware Valley Field Services v. Ramirez, which this Court affirmed. In particular, Campos argues that the Board erred by determining that a job was available to him at Daisy when Daisy was in fact unwilling to allow him to fill it.
When an employer petitions to terminate or modify total disability benefits, as Daisy did in this case, the employer must prove that there has been a change in the employee's condition. The employer must also prove that the claimant is not partially disabled when the evidence demonstrates " that in spite of improvement, there is a continued disability" that " could reasonably affect the employee's earning capacity." 
On appeal, Campos does not challenge the Board's decision to terminate his total disability benefits, and instead solely contests the denial of his partial disability benefits. Thus, the specific issue before us is whether the Board's decision that Campos was ineligible for partial disability benefits is consistent with the Workers' Compensation Act and supported by substantial evidence on the record.
Under Delaware law, an employee who is partially disabled due to a work-related accident is entitled to compensation. The Workers' Compensation Act does not define " partial disability." Instead, 19 Del. C. § 2325, the statutory provision authorizing partial disability compensation, provides in relevant part:
For injuries resulting in partial disability for work . . . the compensation to be paid shall be 66 2/3 percent of the difference between the wages received by the injured employee before the injury and the earning power of the employee thereafter. . . . This compensation shall be paid during the period of such partial disability for work, not, however, beyond 300 weeks.
Accordingly, Daisy was required to prove that Campos had no decrease in earning power following his workplace injury in order to avoid owing Campos partial disability benefit payments under § 2325.
In determining an employee's " earning power" following an injury, Delaware courts are authorized to consider other relevant factors in addition to those that are related to the claimant's injury, including the claimant's age, education, general background, occupational and general experience, the nature of the work that can be performed by a worker with the physical impairment, and the availability of that work. These factors, in other words, indicate that the worker must be taken as he was hired, and that, for example, a general laborer whose workplace injury has rendered him unemployable or unable to perform heavy physical labor could not be denied benefits because accounting jobs are there for the taking.
Previous decisions have emphasized that the availability of work for the claimant is a primary factor in the disability determination, and an employer cannot meet its burden of proving that the worker is not entitled to partial disability payments without showing that jobs are available to the claimant, in his restricted state, at his pre-injury wage rate. In order to prove that the employee is not partially disabled, the employer must establish that the employee is actually able to obtain a
job given his particular circumstances. As the Superior Court explained:
Common sense and everyday experience tells us that a person with given physical disabilities may be physically capable of performing certain " available" work, but because of his disability may be unacceptable to an employer and thus unable to secure such work. . . . Jobs must be realistically " within reach" of the disabled person. . . . A showing of physical ability to perform certain appropriate jobs and general availability of such jobs is . . . an insufficient showing of the availability of said jobs to a particular claimant.
This Court has further clarified that " [a] workman may be totally disabled economically, and within the meaning of the Workmen's Compensation Law, although only partially disabled physically. In this connection, inability to secure work, if causally connected to the injury, is as important a factor as the inability to work." 
In this case, the Superior Court accepted the Board's finding that Campos was not disabled economically because light duty jobs were available. To be more precise, the Superior Court accepted that Campos was not disabled economically because light duty jobs at Daisy itself were available to him. Daisy presented no other evidence of job availability.
We do not agree that Daisy's offer of a job to Campos constituted sufficient proof of job availability. Consistent with federal law, Daisy could only hire Campos if he could present authorization to work, which he cannot do. The record thus establishes that a job at Daisy was not in fact available to Campos, who does not have a valid social security card. Thus, Daisy's offer to re-hire him was not a bona fide offer.
We have previously found this type of " theoretically available" argument to be unavailing for employers seeking to meet their burden to terminate benefits under the Workers' Compensation Act. In Johnson Controls, Inc. v. Fields, an employer sought to terminate an employee's total disability benefits after firing him for insubordination. The Board granted the employer's petition, reasoning that, but for the employee's misconduct, the employee would have been able to work for the employer, and thus, the employee did not have diminished earning capacity. The Superior Court's decision to reverse, which we affirmed, determined that the employer could not " transfer the legislatively determined process for the payment of workers' compensation" by firing the employee.
Similarly, Daisy cannot avoid the legislatively determined process for evaluating whether an employee is partially disabled. The Workers' Compensation Act provides that employees who have suffered a loss in earning power following a workplace injury
are entitled to benefits, and this inquiry requires consideration of the employee's individual circumstances. The employer who seeks to terminate benefits also bears the burden to prove that jobs are actually available -- i.e., " within reach" -- of the injured employee.
The record shows that Campos' permanently impaired shoulder prevents him from engaging in heavy-duty work. He will never recover fully. And because Daisy investigated Campos' immigration status in connection with his claim for benefits, at the request of its workers' compensation insurance carrier, and discovered that Campos social security card was invalid, Daisy is now unwilling to employ him.
Daisy does not dispute these facts, nor did it provide any evidence that Campos is able to find work elsewhere. For these reasons, Daisy did not meet its burden of showing that Campos is not partially disabled under the Workers' Compensation Act.
As Daisy points out, federal restrictions prevent it from re-hiring Campos. But Daisy's carrier's focused investigation and other facts of record could be viewed by a rational mind as suggesting that Daisy may have harbored concerns about Campos' immigration status before his injury.
In light of Campos' inability to secure new work legally, Daisy may find it difficult to demonstrate job availability, as a labor market survey or some other form of proof may not identify jobs that are actually available to Campos. But any difficulty in proving job availability is properly borne by the employer, who must take the worker as it hired him. We thus hold that if Daisy cannot prove by reliable evidence that jobs are in fact available to Campos as an injured undocumented
worker, then Daisy must continue to pay partial disability benefits until it shows that Campos has been re-employed. Once it determines that Campos has found new employment, Daisy can seek to prove that he does not have decreased earning power by comparing his new wage with his pre-injury wage in a hearing before the Board.
Our decision to interpret § 2325 in this manner under these circumstances is driven by several factors. First and most important, this interpretation is the one most faithful to the Workers' Compensation Act, as reflected in its plain terms and the judicial precedent applying the Act over many decades. Second, by ensuring that undocumented workers are given equal treatment under the Workers' Compensation Act, this interpretation reduces the incentive for employers to hire undocumented workers, and thus minimizes the overall incentive for illegal immigration, which is the primary goal of federal immigration law. Third and finally, this reading of the Act ensures that all workers in Delaware are not exposed to excessive risk because employers are required to bear the full cost of operating an unsafe workplace.
A. The Purposes Of The Workers' Compensation Act Are Best Advanced By Holding Daisy To Its Statutory Burden To Prove That Campos Has Jobs Available To Him.
For many years, the Workers' Compensation Act has been interpreted to require an employer to show that a partially disabled worker has work available to him, in light of his particular characteristics, before his benefits are terminated. And we recently recognized that Workers' Compensation Act requirements apply equally to documented and undocumented workers.
In Ramirez, we affirmed the Superior Court's holding that an employee who supplied a false social security number and was later deported was entitled to continued payment of total disability benefits, and that his illegal status " [did] not remove him from coverage for job related injuries."  Ramirez relied on the plain language of the Workers' Compensation Act to reach this conclusion. Because the employer had not met any of the statutory bases for the suspension of benefits, the Superior Court affirmed the Board's refusal to terminate Ramirez' benefits. We held that this ruling was proper. The decision in Ramirez accords with the case law in the majority of other states that have confronted similar situations.
Daisy now asks us to affirm the Superior Court's termination of partial disability benefits based on a showing that would be insufficient to terminate partial disability benefits granted to a legal employee. Under Johnson Controls, an employer cannot rely on its own testimony that it would be willing to hire an employee with the same disability in the abstract as proof of job availability. Rather, if the employer wants to point to a job at its own workplace for the claimant, it must actually be willing to allow the claimant to occupy the job.
Were we to decide this case differently, the playbook for employers wishing to reduce their labor costs by exploiting workers is simple. Turn a blind eye when hiring and enjoy employing workers reluctant to complain about low pay or workplace conditions. And, if one of these
employees is injured, then, and only then, verify that employee's immigration status. When met with a demand for benefits, generously offer to re-hire the worker once he gets proper immigration status. Consistent with Ramirez and the well-reasoned decisions of other courts that have confronted similar situations, we decline to endorse this blueprint for the denial of benefits.
Holding Daisy to its statutory burden to show that Campos has employment available to him is the result most consistent with the goals of the Workers' Compensation Act, which was designed " to give an injured employee . . . a prompt and sure means of receiving compensation and medical care without subjecting him to the hazards and delays of a law suit."  When Campos received benefits under the Act, he gave up his right to sue Daisy in tort for permanently disabling him. If we were to now find that Daisy could terminate his benefits without making a proper demonstration of job availability as required by § 2325, we would leave Campos with no recourse following his disabling workplace injury.
At oral argument, Daisy contended that allowing Campos to collect partial disability benefits would allow him to receive a windfall because of his status as an undocumented worker. We disagree. Because of his workplace injury, Campos has a permanently impaired shoulder. He is not legally allowed to work in the United States and faces the risk of deportation by seeking a new job. He cannot sue Daisy in tort, nor is he likely to recover any of the FICA taxes that were paid on his behalf and were effectively part of his wage. It is doubtful, therefore, that Campos will perceive himself as receiving any windfall from his workplace injury.
Moreover, Daisy can properly petition the Board to terminate Campos' benefit payments once it establishes that Campos has not suffered a loss in earning power. Allowing Daisy to avoid making payments that would otherwise be required under the Workers' Compensation Act would award Daisy itself a windfall for hiring an undocumented worker and, only after he became injured, claiming that it was obligated to comply with federal law regulating an employer's duty to verify proper work eligibility.
B. Requiring Daisy To Show That Jobs Are Available To Campos Will Increase Incentives For Employers To Honor Federal Immigration Law.
Embracing Daisy's position would encourage employers to relax their hiring practices and employ undocumented workers, which would ultimately heighten, not dampen, illegal immigration. It is easy to see why. Our nation is proud to be one of immigrants. Most of our forebearers originally came here at great risk and emotional cost to pursue a better life and feed their families. We venture that most undocumented workers do not lightly leave their homeland and families for relatively low wage jobs in the United States. As de Tocqueville observed, " [t]he happy and powerful do not go into exile. . . ."  They typically do so because of necessity, and in almost all cases, because they cannot provide their families with whet many Americans take for granted. Without endorsing a worker's decision to seek employment in the United States without proper immigration status, we also note the obvious and important reality: the employment relationship takes two. Absent a willingness
by comparatively better resourced and less vulnerable employers to hire workers whose immigration status they do not verify, illegal immigration would slow considerably, as the economic reward of jobs would be less available.
Placing the burden of proving job availability on employers of undocumented workers following a workplace injury is thus most consistent with the purpose of the IRCA itself. The IRCA seeks to " close the back door on illegal immigration" through the use of employer sanctions, which Congress determined was the " most humane, credible and effective way to respond to the large-scale influx of undocumented aliens." 
If we accept Daisy's position and excuse employers from paying partial disability benefits to undocumented workers, employers' economic incentives to hire undocumented workers instead of legal ones, especially for high-risk jobs (such as those in the construction industry), will increase. As the Superior Court explained in Ramirez, denying undocumented workers equal treatment under the Workers' Compensation Act would " contravene the purpose of the [IRCA] by creating a financial incentive for unscrupulous employers to hire undocumented workers."  Stated
more positively, under the interpretation of the Workers' Compensation Act in Ramirez and adhered to in this opinion, strong incentives are created for scrupulous compliance by employers with federal immigration law in the first instance.
We need not decide today what result would pertain in a different factual scenario, where the employer was able to demonstrate that it had a uniformly applied policy of scrupulously verifying the immigration status of the workers it employs, using the E-Verify system or other responsible means, and, despite proof that the employer had used these means when hiring the claimant, it somehow hired the claimant despite his undocumented status. In that circumstance, the burden of proving job availability under § 2325 might be properly shifted to the undocumented employee, consistent with the IRCA. Under § 1324a(a)(3), the employer has an opportunity to make out an affirmative defense: " [a] person or entity that establishes that it has complied in good faith with the requirements of . . . hiring, recruiting, or referral for employment of an alien in the United States has established an affirmative defense. . . ." Alternatively, when faced with that situation, it may be that the employer should continue to bear the burden of persuasion to show availability, but that the claimant's status as an undocumented worker should be disregarded. The question of whether and which approach to take should be answered after full briefing in a case where the facts warrant making those decisions. But this is not such a case.
And it is perhaps unsurprising that we have not been able to find a case that deals with that factual scenario. The reason is simple: if an employer uniformly checks the documents provided by applicants using the E-Verify system, for example, it will typically not hire the undocumented worker in the first instance.
C. Requiring Employers To Show Job Availability Will Best Protect The Safety Of All Delaware Workers.
Finally and of importance to all who work in Delaware, our holding also best promotes one of the purposes of the Workers' Compensation Act: " to foster a workplace safe for all workers."  " Because the Act was intended to benefit injured workers, our courts construe it liberally, and resolve any reasonable doubts in favor of the worker."  If we were to allow employers to avoid paying partial disability benefits to undocumented employees, we would lower the expected cost to employers of workplace injuries, and thus encourage employers to relax workplace safety requirements. Accordingly, workplace safety for all workers would
suffer. This is a genuine concern because undocumented workers make up a large part of the workforce in high-risk industries where the need for prudent safety measures is more, not less, important.
For the foregoing reasons, the judgment of the Superior Court is hereby REVERSED. This matter is remanded to the Superior Court for remand to the Board and a new hearing in accordance with this opinion.