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Should Immigration Status be Considered When Evaluating a Florida Workers’ Compensation Claim for Potential Permanent Total Disability?

November 17, 2021
November 15, 2021

When evaluating whether to accept a claimant as permanently and totally disabled (PTD), carriers are often faced with claimants who have difficulty finding employment due to their immigration status. While immigration status is not an enumerated factor, case law suggests it can be considered.[1] Undocumented persons living in the United States cannot obtain a driver’s license and may have limited English language skills, which are necessary to obtain many jobs.

Carriers often raise a claimant’s immigration status as a defense to a PTD claim. Arguments are generally made that it is a claimant’s immigration status that is preventing him or her from returning to work, rather than his or her work-related injuries. However, this argument was rejected as the First District Court of Appeal held in HDV Constr. Sys. Inc. v. Aragon that immigration status is not a bar to benefits, relying on the definition of employee, which includes any person who receives remuneration from an employer including aliens, whether lawfully or unlawfully employed. Moreover, an employer/carrier is estopped from defending a claim based on immigration status when the employer knew or should have known that the claimant was undocumented. See Cenvill Dev. Corp. v. Candelo, 478 So. 2d 1168 (Fla. 1st DCA 1985).

While an undocumented claimant’s vocational factors may be a hurdle to overcome a claim for PTD benefits, these claims can be defeated when a proper plan to get the claimant back to work is put into place, early in the claim, to allow time for training programs that will combat the negative vocational factors.

[1] A claimant may prove entitlement to PTD benefits by presenting evidence of: a) permanent medical incapacity to engage in at least sedentary employment within a 50-mile radius of his or her residence, due to physical limitations; b) permanent work-related physical restrictions coupled with an exhaustive but unsuccessful job search; or c) permanent work-related physical restrictions that, while not alone are totally disabling, preclude the claimant from engaging in at least sedentary employment when combined with vocational factors. See Blake v. Merck & Co., 43 So. 3d 882 (Fla. 1st DCA 2010).