The courts have not been supportive of insurers when it comes to one of the most heated hot-bottom issues in politics today–the implications of illegal immigration–ruling that undocumented employees are entitled to workers' comp benefits if hurt on the job, even if they forged their identification papers. Even for someone like me who is against mass deportations and in favor of reasonable immigration reform, this seems to go too far.

As reported by our own Dan Hays, the latest ruling came earlier this year when the South Carolina Supreme Court said iIlegal immigrants injured on the job are entitled to workers comp benefits, even though the court acknowledged that the claimant had tricked his employer into hiring him with fraudulent documents. (To read the complete article, click here.)

The court, reported Mr. Hays, ruled unanimously that providing benefits to undocumented employees does not conflict with federal law–the Immigration Reform and Control Act. Indeed, the court pointed out that the law contains no specific provision forbidding workers compensation benefits to illegal alien workers.

The court added that South Carolina's workers comp law defines employees simply as those engaged in employment, including aliens and also including minors, whether lawfully or unlawfully employed.

South Carolina is not alone in its reasoning. The court cited similar, prior decisions by state courts in Florida, Georgia, Maryland and Minnesota.

Part of the court's rationale was subjective. The judges said that disallowing benefits would mean unscrupulous employers could hire undocumented workers without the burden of insuring them, and would in fact be encouraged to hire them because they didn't need workers' comp for them.

I think that logic is twisted.

First of all, besides the fact that the worker is in the country illegally, making his employment illegal, this particular claimant forged papers to fool his employer.

Had the employer knowingly hired an illegal alien, and that individual was hurt on the job, I would grant the worker's right to sue to recover medical expenses and perhaps even lost-time benefits–but from the employer, who conspired in the illegal activity by hiring the individual, not the insurer that innocently covered the unscrupulous employer.

However, if it was proven that the injured worker had defrauded the employer, I would say the employee himself should be on the hook for medical costs and any lost wages–not his victimized employer, and certainly not the totally innocent workers' comp insurer.

If it could be proven that the employer knowingly maintained an unsafe work environment that led to the injury, thus being guilty of gross negligence, perhaps one could argue for punitive damages in a private lawsuit filed by the harmed party (although the notion that handing in fraudulent papers broke the implied contract between employer and employee might be cited in the employer's defense). But that still would be beside the point as far as the insurer is concerned.

Is this one of those times when the spirit of the law–that everyone involved should depict themselves honestly so that the risk can be properly underwritten and priced–is clearly in the insurer's favor, but the letter of the law is not? If so, the law should be changed to clearly exempt illegal aliens from coverage.

Does this make any sense to you folks? What do you think?

Special Reports /

Should Illegal Aliens Get Workers' Comp?

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