Can Undocumented Immigrants Get Workers’ Comp in Virginia? 

Can Undocumented Immigrants Get Workers’ Comp in Virginia? 

The common question of whether undocumented immigrant workers are entitled to benefits under Virginia Workers Compensation Act is a common question. Undocumented workers are eligible for some workers’ compensation benefits, but not all the same benefits as documented workers. Here is what you need to know about your rights when it comes to workers’ compensation in Virginia and being undocumented:

Virginia’s Workers’ Compensation and Undocumented Workers

The history of Virginia’s laws regarding undocumented workers and workers’ compensation goes back to 1986, when Congress passed the Immigration Reform and Control Act (IRCA). The IRCA included fines for employers that hired undocumented workers and established an employment verification system, and also caused new legal issues to arise. In Virginia, the question of whether an undocumented worker could receive workers’ comp benefits came to a head in a Supreme Court of Virginia case of Granados Vs. Windson Development Corp. 

The case involved an undocumented worker, Jose Granados, who was hired by Windson Development after providing forged documents stating he was legally authorized to work in the US. While subsequently working for the company, he became injured and sought benefits under the Virginia Workers’ Compensation Act. During a hearing with the Virginia Worker’s Compensation Commission, Granados was questioned about his documents and admitted they were false. Representatives for Windson testified that they believed the documents were real and would not have hired Granados had they known the truth. The Commission denied Granados’ claim for workers’ comp benefits after the hearing.

Granados later appealed the decision, and ultimately the case ended up in the Supreme Court of Virginia, which sided with the Commission. They found that since Granados had misrepresented himself when applying for the job, his employment contract was invalid, and he was therefore ineligible for workers’ compensation benefits.

The Effects of Granados Vs. Windson Development Corp

Not as a surprise, this decision had consequences beyond just the Granados’ case, as it was then frequently cited as grounds for denials of benefits to other undocumented immigrants. The employers soon found this was not actually to their advantage that since workers’ compensation did not apply in these cases, many undocumented workers simply sued their employers for damages and the entitlement to damages outside of workers compensation far exceeds the entitlements under the workers compensation system.

This is a good time to discuss and to understand one of the reasons for the initial creation of a workers’ compensation system was to allow injured workers to receive benefits without having to file a lawsuit. Lawsuits are expensive and time-consuming for both parties. Employers do not want to spend time and money arguing that an accident was an injured worker’s fault, and injured people do not want to spend time and money arguing that an accident was not their fault. The court system was already inundated with cases and adding the workplace accident suits would clog and slow the court system down. The workers’ compensation system prevented an overwhelming number of lawsuits from saturating the courts.

After the Granados decision, many employers found themselves dealing with lawsuits instead of workers’ compensation claims. This was a problem for businesses as well as Virginia civil courts with overloaded dockets. It was also a problem for injured employees who might have to wait months or even years for compensation, even if they won their case.

Do to the unintended consequences of this decision, Virginia’s legislature passed legislation amending the Virginia Workers’ Compensation Act. One key element of the amendment was that it redefined “employee” to include “aliens and minors” regardless of whether they were lawfully employed. 

The amendment does have restrictions on how workers’ compensation claims by undocumented employees could be addressed. Benefits for lost wages were prohibited for undocumented workers except in cases of total disability (being completely unable to work).

Virginia law now requires covering undocumented workers, but benefits are limited to paying for the workers’ medical treatment. Lost wages from being unable to work, or unable to work at previous capacity, will not be covered unless the worker can prove they have total disability.

How Does This Affect Your Workers’ Compensation Case?

Generally, if your claim for workers’ compensation is approved, you should be eligible to have your medical care covered, but not your lost wages, except in situations of total disability. There may be other avenues of pursuing compensation. Virginia requires that employers provide a “reasonably safe” work environment. This includes ensuring that workers have appropriate safety equipment, fixing broken machinery, cleaning up spills that could lead to a fall, etc. Although the workers’ compensation system prevents most personal injury lawsuits over workplace accidents, there are some situations where one might be possible if the employer was actually negligent in maintaining a safe environment. This may be difficult to prove so if you believe your employer negligently caused you to suffer an injury, please speak with a workers’ compensation attorney right away. The attorney can advise you on whether or not a lawsuit is possible in your situation.

What If Your Workers’ Compensation Claim is Denied?

Unfortunately, workers’ comp claims are often denied for a wide variety of reasons. Sometimes clients are concerned that the denial is related to their immigration status, but this is not necessarily the case. Common reasons for workers’ compensation claim denials include:

• The employer or their insurance carrier does not believe you were really hurt at work. Often the employer will claim that your injury occurred elsewhere and had nothing to do with your job. This defense can be very complicated if you had any pre-existing conditions or injuries. A workplace injury can make an existing condition worse, and you have a right to receive benefits for it.  A workers’ rights attorney can help you fight for the compensation you need.
• The employer does not think you were really hurt or that you were, but not as badly as you say. The insurance company may claim that you do not need a specific treatment your doctor recommends, and they might refuse to pay on the grounds that it is unnecessary. In some of these cases, we are able to successfully override the insurance company’s perspective with the appropriate medical documentation.
• Lack of evidence regarding the accident or injury. Sometimes claims are denied because the injured party didn’t realize the extent of their injuries and waited several days or weeks to see a doctor. Frequently this is an easy excuse for the insurance company to deny the claim. In other situations, the problem may be that the injured worker did not report the accident to their supervisor right away – or the supervisor claims they were never notified. We recommend reporting your accident as soon as possible, in a way that leaves you with a record, such as an email from your personal account or a text message from your personal phone. In other situations, you might have reported the accident, but there may be questions if no one at work witnessed what happened.
• Your employer claims you were intoxicated at the time of the accident or that you injured yourself on purpose. For the most part, workers’ compensation is a no-fault system, but there are exceptions for workers who hurt themselves on purpose or are working under the influence. This is why many companies have mandatory drug tests after an employee accident.

Get Help with Your Workplace Injury Claim

The list above contains only a few common reasons for workers’ compensation claim denials, but there are many others. If your claim has been denied for any reason, or you have other concerns about a workplace injury, regardless of your immigration status, please contact Lugar Law for a free consultation.