December 04, 2017 BY Lauren Julian
Impact of Detention by Immigration and Customs Enforcement on Workers' Compensation Benefits
With the increasing focus on illegal immigration in our current political climate one issue that employers and insurers are likely to encounter is what happens to an illegal alien claimant’s temporary total disability in the event of detainment by the United States Bureau of Immigrations and Customs Enforcement (ICE). A simple review of the news reflects increasing action to crackdown on identifying and deporting illegal immigrants. Thus, an understanding of how an immigration detention affects workers’ compensation benefits is of the upmost importance.
Typically, an illegal alien is identified by the Bureau of Immigrations and Customs Enforcement through his or her arrest by local police officials on a criminal charge. An immigration hold will be added to the claimant’s booking sheet and the individual will be transferred into the custody of the Bureau of Immigrations and Customs Enforcement and transported to a Bureau of Immigrations and Customs Enforcement holding facility while awaiting a removal proceeding or ‘Master Hearing’ before an Immigration Judge. While an illegal alien in immigration custody could be eligible for release on bond, often times an illegal alien will not be released because of an arrest or conviction of certain types of offenses. In most cases, the Master Hearing takes precedent over the criminal charges and frequently, although an illegal alien claimant may be identified through an arrest, the claimant is never seen by a Judge for the criminal charges. Consequently, the criminal charges remain pending as there is never an adjudication of guilt.
As has been well established, an illegal alien worker is eligible to receive workers’ compensation benefits under the Georgia Workers’ Compensation Act. Wet Walls, Inc. v. Ledezma, 266 Ga. App. 685, 598 S.E.2d 60 (2004). Upon the arrest and incarceration of a claimant receiving workers’ compensation indemnity benefits, the employer and insurer may wish to suspend the benefits. However, Georgia law has very clear guidelines addressing when an employer or insurer can unilaterally suspend indemnity benefits. In particular, the Georgia Court of Appeals has held that if a claimant who is receiving temporary total disability benefits becomes incarcerated prior to a conviction of a crime, then the claimant is entitled to continue to receive weekly temporary total disability benefits. Howard v. Scott House. Sys., 180 Ga. App. 690 (1986). Incarceration, standing alone, is not a valid ground for termination of workers’ compensation disability benefits. This rule is essential to protect the injured worker’s right of due process under the law.
Although the issue before the Court of Appeals in Howard did not specifically involve a detention by the Bureau of Immigration and Customs Enforcement, the holding is consistent with a 2014 decision of the Appellate Division of New York, Third Judicial Department, where the Court found that the claimant was eligible for workers’ compensation benefits during his immigration confinement. Islam v. BD Constr. & Bldg., 116 A.D.3d 1174, 984 N.Y.S.2d 196 (3d Dep’t 2014). In particular, the Appellate Division of New York found that the benefits were required to be continued because the immigration detainment was civil and non-punitive in nature. Id.
As discussed above, the immigration proceeding takes precedent over the criminal charges. Thus, in the case of an illegal alien detained by the Bureau of Immigrations and Customs Enforcement, it is unlikely that the criminal charges will ever be adjudicated. Consequently, in most cases a detained illegal alien claimant will continue to be entitled to temporary total disability benefits throughout his or her detention by the Bureau of Immigrations and Customs Enforcement. Further, the claimant’s entitlement to temporary total disability benefits will continue despite deportation or voluntary departure from the United States so long as the claimant remains disabled. Wet Walls, Inc. v. Ledezma, 266 Ga. App. 685, 598 S.E.2d 60 (2004). Unfortunately, once a claimant leaves the country it is extremely difficult for the employer or insurer to exert control over the continuing medical treatment.
Another consideration for an employer or insurer paying temporary total disability benefits to an illegal alien detained by the Bureau of Immigrations and Customs Enforcement is the inability of the claimant to receive medical treatment for the work injury. Unlike local jails, the Bureau of Immigrations and Customs Enforcement holding facilities are not necessarily located near the claimant’s home or point of arrest. Although the detention facilities have medical professionals on staff, they are unlikely to administer the same level of treatment and care as the claimant’s authorized treating physician or issue an opinion on work status or restrictions. Depending on the location of the detention facility, the employer or insurer could attempt to bring the authorized threating physician to the facility for treatment and work status. However, realistically it is nearly impossible that the Bureau of Immigrations and Customs Enforcement will permit the authorized treating physician to examine the claimant inside the detention facility. As such, the employer and insurer may seek to suspend the temporary total disability benefits based on the claimant’s failure to comply with medical treatment.
This issue was discussed in a recent case before the State Board of Workers’ Compensation in which the employer and insurer attempted to suspend a claimant’s benefits for failure to comply with medical treatment for appointments scheduled during the claimant’s incarceration. In that case, Administrative Law Judge Warren Massey denied the employer and insurer’s request by making an analogy to. Howard. Judge Massey found that an employee that is unable to attend medical appointments due to his incarceration could not be considered willful failure to cooperate with medical treatment. He found that the same reasoning that excuses an injured worker from a light duty job due to incarceration also excuses the worker from missing medical appointments. Although this case was vacated by the Appellate Division in favor of an evidentiary hearing, it is a good indication of how an Administrative Law Judge would rule on the issue.
With the increasing crackdown on identifying and deporting illegal aliens the issue of how to treat a detained claimant’s workers’ compensation benefits is becoming more prevalent. As such, employers and insurers must be aware of their rights and obligations with respect to providing continuing benefits to a detained claimant under the law. Please contact one of our experienced attorneys with any questions.
The Journal is a publication for the clients of Drew Eckl & Farnham, LLP. It is written in a general format and is not intended to be legal advice to any specific circumstance. Legal Opinions may vary when based upon subtle factual differences. All rights reserved.
H. Michael Bagley