Can Undocumented Workers and Illegal Immigrants Receive Workers’ Compensation Benefits in Virginia?


Undocumented Workers Are Entitled to Wage Loss Benefits and Medical Treatment for Work-Related Injuries


Following a Virginia Supreme Court decision in 1999, the General Assembly amended the Workers’ Compensation Act to provide workers’ compensation benefits to undocumented workers and illegal aliens in some situations. This article explains how undocumented workers can receive Virginia workers compensation. If you have any questions or comments, contact workers comp lawyer Corey Pollard for a free consultation.


The Virginia Supreme Court Decision in Granados v. Windson Development Corp.


In Granados v. Windson Development Corp., 509 S.2d. 290, 257 Va.103 (1999), the Virginia Supreme Court held that an illegal alien who had misrepresented his immigration status and eligibility for employment in the United States was not entitled to workers’ compensation benefits.


The claimant in that case, Jose Ismael Granados, was hired as a carpenter’s helper. At the time he was hired, the employer asked Granados to provide his social security card and one other form of identification. Granados presented a social security card bearing his name and a card purportedly from the Immigration and Naturalization Service, containing Granados’s photo and identifying him as a resident alien. Both documents were forged. Granados signed an employment eligibility and verification form attesting that he was an alien lawfully admitted for permanent resident in the U.S.


Subsequently Granados fractured his ankle when he fell from a stack of lumber. He was totally disabled for a few months, at which time he was released to light duty work. He filed a claim for workers compensation benefits with the Workers’ Compensation Commission.


At the workers compensation hearing the employer testified that it did not hire applications who lacked proper documentation regarding their immigration status, and that it would not have hired Granados if it knew his documents were forged. The deputy commissioner denied workers’ compensation benefits on the ground that Granados “materially misrepresented his employment eligibility by (1) providing a false social security card, (2) providing a [false] alien immigration card, and (3) signing the Employment Eligibility Form.”


On appeal the full Commission affirmed the deputy commissioner’s denial of benefits.


Grenados appealed the full Commission’s decision, arguing that there was no connection between his misrepresentations and his work injury. He argued that his work injury was “independent of the condition which was misrepresented [i.e., his eligibility for employment].”


On appeal the court restated the test for determining whether a false representation made by an employee in applying for employment will bar a later claim for workers’ compensation benefits. It found that the employer failed to demonstrate the required causal relationship between Granados’s false representation that he was a documented worker and his resulting injury. Granados’s injury was unrelated to the false representations regarding his immigration status.


The court, however, found that the deputy commissioner reached the correct conclusion for the wrong reason. In denying benefits, the court stated that an illegal alien did not fall under the definition of “employee” found within Virginia Workers’ Compensation Act Section 65.2-101 because an undocumented worker cannot be employed lawfully in the United States. Granados’s contract of hire was, therefore, void and unenforceable.


The General Assembly Responds to the Granados Decision


Following the Virginia Supreme Court’s decision in Granados, the Virginia General Assembly took action. It amended Virginia workers’ compensation laws so that undocumented workers are eligible for workers’ compensation benefits when they are hurt on the job. It did so over the governor’s veto.


Under the changes, employers must provide illegal immigrants with medical and wage-replacement benefits when they are unable to work because of a work-related injury. The survivors of undocumented workers can also receive death benefits if the illegal alien dies in a workplace accident.


The Attorney for Undocumented Workers and Illegal Immigrants Seeking Workers Compensation in Virginia


There are thousands of undocumented workers employed in Virginia.


If you are an illegal alien or undocumented worker who suffered an injury by accident arising out of and in the course of your employment, the employer and its insurance carrier must pay for 100% of your medical treatment. They must also pay you wage loss benefits equal to 2/3 of your pre-injury average weekly wage if your physician keeps you out of all work, as well as permanent partial disability benefits for permanent impairment to the injured body part.


You are not entitled to wage loss benefits if you are released to light duty work, since the Workers’ Compensation Commission has found that an undocumented worker is unable to conduct a good faith job search if he or she is unable to work in the U.S. lawfully. 


Looking for an experienced workers compensation attorney for undocumented workers? Contact lawyer Corey Pollard today for a free consultation.


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