I have recently written on the proposal before the WCAC regarding undocumented workers being barred from collecting workers’ compensation benefits. If the proposal becomes law, it is clear that undocumented workers would not have the ability to recover workers’ compensation benefits. However, they would arguably be able to recover under civil law for pain and suffering, medical expenses, punitive damages and lost wages. Therefore, instead of the employer’s work comp carrier picking up the bill, the employer would be liable for benefits that could exceed the maximum recoverable under workers’ compensation.
WorkCompEdge recently posted an article concerning this very topic.
Many employers seem to forget that employees deprived of the remedy of workers compensation may pursue a tort liability suit against the employer. When that happens, the employer loses the protections under the workers compensation act and can be sued for pain and suffering, in addition to the medical costs and lost wages as a result of the injury, neither of which applies under workers compensation. Admittedly, workers compensation is an imperfect system, and its imperfections vary from state to state. Nevertheless most workers compensation stakeholders would argue it is certainly better than the alternative…an injured worker as a plaintiff in a civil tort suit in front of a jury of his or her peers. Instead of statutory limited benefits, the employer is exposed to open tort award.
The WCAC may want to take a hard look at this issue and whether employers would be willing to accept the possible liability.