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Immigration status not sole factor in injured worker’s employability

Immigration status not sole factor in injured worker’s employability

The Delaware Supreme Court has ruled that being unable to return to work due to immigration status doesn’t necessarily make an undocumented worker unemployable.

Therefore, an injured worker's immigration status can’t be used alone to determine whether they should continue to receive workers compensation disability benefits, the high court said.

According to court records, Magdalena Guardado worked as a machine manager for Kenton, Delaware-based Roos Foods Inc. In 2010, Ms. Guardado injured her left wrist and received workers comp total disability benefits.

Ms. Guardado came to the United States from El Salvador in 2004, is not a U.S. citizen and does not have credentials or documentation that would establish that she is legally able to work in the United States, court records show.

In 2014, Ms. Guardado underwent a fusion surgery on her left wrist fusion performed by Dr. Richard DuShuttle, court filings show. Soon after the surgery, Dr. DuShuttle released her to light duty, one-handed work because her right hand was uninjured.

Roos Food filed a petition for a review to terminate Ms. Guardado’s workers comp benefits, alleging that she could return to work, records show. A doctor testifying on behalf of Roos Foods said he believed that she could do desk work or any other type of work that did not require manipulation with both her left and right hand. But Dr. DuShuttle, testifying on behalf of Ms. Guardado, stated that the impairment to the left hand is permanent and that she could only use it for simple activities.

The Delaware Industrial Accident Board found that Ms. Guardado was no longer totally disabled by her wrist injury. However, the board found that she could be considered a displaced worker — and therefore remain eligible for comp benefits — "based upon her undocumented legal status and (because Roos Foods) has failed to (show) regular employment opportunities within Claimant’s capabilities as an undocumented injured worker.”

Roos Food appealed the decision to the Delaware Superior Court, which affirmed the board's decision in January.

"Guardado is almost middle-aged and has no education beyond high school in El Salvador,” the Superior Court ruling read. "Guardado has no real workplace training, very little work experience, does not speak English, is unskilled in the labor market, and has work restrictions that limit her to light-duty work with one hand. These undisputed facts certainly portray a woman disqualified from regular employment in any well-known branch of the competitive labor market. When you add in the fact that she cannot work legally in this country, then her difficulties in obtaining work become even greater."

However, a three-judge panel of the Delaware Supreme Court reversed the Superior Court ruling on Tuesday. The high court found that an injured worker's immigration status can't be considered alone when determining if the claimant is a displaced worker who should continue to receive comp benefits.

Rather, the high court said other factors must be weighed in addition to an injured worker's immigration status, including “the employee’s age, education, general background, occupational and general experience, emotional stability, the nature of the work performable under the physical impairment and the availability of such work.”

The state Supreme Court also said that Roos Foods must prove that work is available for Ms. Guardado if it seeks to discontinue her disability benefits based on her employability.

What "is required is that an employer who has a burden of showing that jobs are actually available for an undocumented worker address that reality by presenting reliable market evidence that employment within the worker’s capabilities is available to undocumented workers," the ruling reads. "That burden is not an unreasonable one for employers to bear, particularly when they hired an undocumented worker in the first place."

The case was remanded to the state Superior Court for further proceedings.





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