Escamilla v. Sheil Sexton Co. – Undocumented Injured Worker to be Compensated in Pesos?

Undocumented immigrants who are injured on the job in Indiana are entitled to receive workers’ compensation benefits under state law. They are also entitled to pursue third-party compensation from any other liable parties. However, should they be paid in U.S. dollars or in the currency of their native country? That’s the question before the Indiana Supreme Court in Escamilla v. Shiel Sexton Co.

While the question of currency may seem a trivial one, it actually may have a significant impact on how much companies pay workers hurt on the job. Those who argue all workers injured in the U.S. need to be paid in U.S. dollars say that to do otherwise would allow companies that flout the law by hiring undocumented workers to receive an incentive by giving them a means to pay less in compensation in the event of an injury.

Those who are arguing in favor of being allowed to pay in the injured worker’s native currency say it’s not fair that a worker should be allowed to recover damages for lost wages that they can’t legally earn. Furthermore, if those wages were to be paid in the future, they should be based on what the worker might earn in their own country, rather than what they make in the U.S.

The plaintiff in this case has lived in the U.S. since he was 15, when he moved here with his parents from Mexico. He lived with his family in Nevada and worked for a time as a masonry laborer. At some point, he moved to Indiana. There, he again found work with several masonry companies. He had a social security number that he used to pay taxes on his income, but it was actually not his own social security number. It was undisputed he was working as an undocumented immigrant.

One day in 2010, while at work on a construction site, the plaintiff was part of a crew carrying a large, heavy piece of stone. He slipped and fell and was hurt. Doctors permanently restricted the plaintiff from lifting more than 20 pounds, which means he can no longer work in his previous profession. At the time of the accident, the defendant was the general contractor on the project.

The plaintiff sued the defendant, seeking compensation for medical expenses ($30,000), as well as lost wages and future lost income ($1 million). He intended to call several expert witnesses to testify that his injuries permanently impaired his earning capacity as a laborer in the U.S. He then filed a motion with the court to bar any mention of his immigration status.

Attorneys with the Indiana Trial Lawyers Association say the court needs to keep the issue of the plaintiff’s immigration status separate from the injury lawsuit. That is, the company should be accountable to a victim of its negligence, regardless of the immigration status of the victim.

Additionally, an attorney for the plaintiff said the chances of the plaintiff being deported are “less than 3 percent,” which means he would in all likelihood have continued working in the U.S. He posited that this is a politically charged debate, and the facts alone don’t contain the proper context for jury consideration.

Meanwhile, attorneys for the defense say information on the plaintiff’s immigration status is relevant because it affects the value of the plaintiff’s future earnings.

The Pew Research Center estimates there are 8 million undocumented immigrants working in the U.S. civilian workforce – including 5 percent who are either unemployed or looking for work. The Migration Policy Institute estimates there are 93,000 undocumented immigrants living in Indiana.

It’s a case our Highland personal injury lawyers – among many others – will be watching closely.

Indiana Injury Attorney Burton A. Padove handles personal injury claims throughout northern Indiana, including Gary and Hammond.

Additional Resources:

Does injured Mexican worker deserve damages in pesos? Nov. 22, 2016, By Fatima Hussein, Indy Star

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Bicyclists at Risk of Injury by Impatient, Careless Motorists, Oct. 7, 2016, Highland Injury Lawyer Blog