Undocumented Immigrants Lose Out on Benefits

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Under the Connecticut workers’ compensation statutes (codified under Title 31), immigrants who are not U.S. citizens enjoy many, but not all, of the same rights as U.S. citizens. The workers’ compensation system affords medical and indemnity benefits to eligible claimants. Within the indemnity category, there are lost time benefits, permanency benefits, and earning impairment benefits. Particularly, this eligibility hinges on whether an individual is documented and can legally work in the United States.

Immigrants that lack citizenship or proper documentation are still eligible for medical benefits, temporary total disability (TT) benefits, and partial permanent disability (PPD) benefits. With these benefits, an individual can receive medical treatment and be paid while missing work. The individual can also be compensated for any permanency resulting from the work injury.

The Connecticut workers’ compensation system also includes temporary partial (TP) benefits and C.G.S. Section 31-308a benefits (post-specific). In cases of severe injury and disability, an individual may also qualify for Osterlund[1] total permanent disability benefits. If an individual is an undocumented immigrant, these benefits are not available to him/her.

So, why can an undocumented immigrant receive some benefits but not others? With TP, 308a and Osterlund benefits, there is a prerequisite that the claimant has an ability to seek out employment in the same locale. This prerequisite violates federal law and cannot be enforced. 8 U.S. Code Sec, 1324a.

Specifically, TP benefits (C.G.S. Section 31-308(a)) require an individual be “ready, willing, and able to work.” Undocumented immigrants cannot satisfy the third prong of being able to legally work in the same locale. With regard to C.G.S. Section 31-308a, these are discretionary benefits based upon the nature and extent of the injury, the training, education and experience of the employee, the availability of work for persons with such physical condition and at the employee’s age. Again, there is no work available to an individual who cannot legally work in the same locale. Therefore, 308a benefits are not granted to undocumented immigrants.

Most recently, in Tuba a/k/a Angel Tubasaquipay v. All Seasons Landscaping, et al., C.R.B. (May 21, 2019), the Connecticut Workers’ Compensation Commission ruled that undocumented immigrants are not eligible for Osterlund total permanent disability benefits. The case law precludes undocumented laborers from making a case out for total disability, as the claim requires an individual to exercise reasonable diligence to obtain legal employment. Please note that given the amount of discussion this recent case has generated among the legal community, the issue and decision may be appealed.

As a general rule in Connecticut workers’ compensation, undocumented immigrants only receive medical benefits, TT benefits and 308a benefits.  Recently, some undocumented immigrants are circumnavigating the lack of citizenship by obtaining a Tax ID number. This allows the individual to look for work, engage in employment, and pay taxes.  Arguably, it then qualifies the claimant for the benefits that would otherwise not be available.  That aside, in a polarized environment addressing immigrants’ rights, this issue may be further litigated and/or the legislative branch may take action.

[1]  The name of the benefits is derived from the case that created them – Osterlund v State of Connecticut, 135 Conn. 498 (1949).

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