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 ...