SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-3188-94T3
LUIS CASTRO MENDOZA,
Petitioner-Appellant,
v.
MONMOUTH RECYCLING CORPORATION
(correct Respondent being
QUALITY LABOR SERVICES),
Respondent.
_________________________________________________________________
Submitted January 23, 1996 - Decided March 7, 1996
Before Judges Pressler, Keefe and A.A. Rodríguez.
On appeal from the Division of Workers'
Compensation, Department of Labor and Industry.
Victor M. Covelli, attorney for appellant.
Staehle & DeSanto, attorneys for respondent
(Steven J. Currenti, on the brief).
The opinion of the court was delivered by
PRESSLER, P.J.A.D.
The question raised by this appeal is whether an illegal alien
who is injured on the job is entitled to workers' compensation
benefits even if he is not authorized by law to work. The judge of
workers' compensation dismissed the claim petition on the ground
that workers' compensation benefits are not available to an illegal
alien. We disagree and consequently reverse and remand.
Insofar as we can determine from this rather sparse record,
petitioner Luis Castro Mendoza entered the United States from
Mexico some time in 1988. The facts surrounding his entry were
never really established. Petitioner testified through an
interpreter, and his illegal status was apparently regarded by the
judge as proved by petitioner's own testimony. Although he
conceded on cross-examination that he had entered the United States
as an illegal alien, he also asserted that he had a one-year work
permit when he arrived and that he had intended to return to Mexico
when his permit expired. He did not do so, he claimed, because of
the injury he sustained in August 1989 which is the subject of this
claim petition. The inconsistencies and ambiguities in
petitioner's testimony were not resolved. Nor was the date of his
entry into the United States proved. Thus, had he entered in or
after August 1988 with a work permit good for a year, it may well
be that at the time of his injury in 1989 he was not working
illegally. Since we are persuaded, however, that the legality of
petitioner's status makes no difference to his workers'
compensation rights, we assume for purposes of this disposition
that he was an illegal alien on the date of the injury. We see no
useful purpose to be served by a remand at this juncture for a
status determination to be made particularly since the proofs may
be elusive.
In any event, in August 1989 petitioner was working, at a
compensation of $6 per hour, on an assembly line at the Monmouth
Recycling Center. As we understand the record, his employer was
actually Quality Labor Services, who, we surmise, supplied workers
to this and other sites. Petitioner caught his right hand in a
conveyor belt, sustaining a serious injury to the hand requiring
four surgeries and then amputation of his little finger.
Respondent initially admitted that petitioner was in its employ and
that the injury was work-related. Accordingly, it provided medical
and temporary disability benefits.
Prior to any determination having been made of the extent of
petitioner's ensuing permanent disability, a dispute developed
between the parties respecting temporary disability. Several years
after the injury, petitioner consulted a psychiatrist who diagnosed
petitioner's problems as post-traumatic stress disorder and severe
depression attributable to the accident. Petitioner moved for
medical benefits in order to continue treatment with the
psychiatrist and for an extension of temporary benefits during the
period of treatment, estimated by the psychiatrist as a likely
period of eight to twelve weeks. It was during the course of that
hearing that petitioner's alien status first came up....apparently,
he had discussed it with the psychiatrist. Despite the employer's
obligations under the Immigration Reform and Control Act, 8
U.S.C.A. § 1324a(a)-(h) (West 1995), to ascertain the work-authorization status of all employees, respondent had assertedly
not been earlier aware that petitioner was an illegal alien, if,
indeed, he was at the time of the hire. In any event, respondent
then moved for dismissal of the claim petition on the illegal-alien
ground, and the motion was granted.
The compensation judge's rationale in dismissing the petition
relied first on that provision of the unemployment compensation
law, N.J.S.A. 43:21-4(i)(1), barring the grant of benefits to an
illegal, undocumented alien who is neither authorized to work nor
awaiting pending work-authorization. See Brambila v. Board of
Review,
124 N.J. 425 (1991). The judge then pointed to a forty-year-old opinion of this court, Felice v. Felice,
34 N.J. Super. 388 (App. Div. 1955), which struggled with the issue of whether an
injured employee of a partnership who was married to one of the
partners was barred by reason of the marital relationship from
seeking unemployment compensation from the partnership. Rejecting
earlier authority to the contrary, Justice (then Judge) Francis
relied in Felice on the growing recognition of a partnership's
status as a separate jural entity, thus placing it beyond the bar
of interspousal litigation. As illustrative of that partnership
status, Justice Francis noted that for purposes of taxation under
the Unemployment Compensation Act, a partnership is treated as a
separate entity. In this context, namely the susceptibility of a
partnership to an employee's claim for statutory benefits, Justice
Francis observed that "the social purposes which inspired the
workmen's compensation and unemployment compensation legislation
are identical." Id. at 392. Taking that observation completely
out of context and seizing upon it as an analogical vehicle, the
compensation judge concluded that since an illegal alien cannot
qualify for unemployment compensation benefits, then he also cannot
qualify for workers' compensation benefits.
We regard the analytical flaw in this syllogistic reasoning as
evident. Obviously the Workers' Compensation Act and the
Unemployment Compensation Act are both remedial social statutes
designed to alleviate the financial burdens suffered by employees
whose working lives have been interrupted. But their mechanisms,
funding, and underlying premises are very different. The fact that
unemployment compensation is not available to an illegal alien does
not, by itself, answer the question of whether or not workers'
compensation is. We are, moreover, satisfied that the rationale
for withholding unemployment compensation from an illegal alien
does not implicate the workers' compensation system. We are also
persuaded that the purpose, policy and mechanism of the workers'
compensation scheme are entirely consistent with the availability
of benefits to illegal aliens illegally employed who are injured on
the job.
We consider first the Unemployment Compensation Act. As made
clear by Brambila, supra, that Act, unlike this state's workers'
compensation legislation, expressly addresses the qualification of
aliens. Thus N.J.S.A. 43:21-4(i)(1) prohibits benefits to be paid
"on the basis of services performed by an alien unless such alien
is an individual who was lawfully admitted for permanent residence
at the time the services were performed and was lawfully present
for the purpose of performing the services or otherwise was
permanently residing in the United States under color of law at the
time the services were performed." Aside from the express mandate
of that provision, the claimant's availability for work has always
been a prerequisite for eligibility for unemployment compensation.
N.J.S.A. 43:21-4(c)(1). See, e.g., Krauss v. A. & M. Karagheusian,
13 N.J. 447, 457-458 (1953); Vasquez v. Bd. of Review, Labor and
Ind.,
127 N.J. Super. 431, 434 (App. Div.), certif. denied,
65 N.J. 559 (1974). That condition is at the heart of the structure of the
unemployment compensation scheme....that is, that when the employee's
separation from the labor market is both involuntary and temporary,
society bears the burden, by the unemployment tax system, of
alleviating the employee's hardship until a new job is found.
Since an illegal alien is prohibited by law from accepting a new
job, that person must be deemed unavailable for work, thus not
temporarily unemployed and therefore not qualified for unemployment
compensation.
Workers' compensation, however, rests upon quite different
predicates. The conceptual basis of the workers' compensation
system is the substitution of the statutory remedy for a common-law
right of action, the statutory remedy becoming an integral
component of the contract of employment. See Dudley v. Victor Lynn
Lines, Inc.,
32 N.J. 479, 488-489 (1960). Moreover, unlike the
unemployment compensation system, the focus of workers'
compensation is not the primarily prospective one of seeing a
worker through a temporary period of unemployment. Its crux,
rather, is the compensation of a worker who is already injured on
the job both for the time lost from work because of the injury and
for the disabling effect of the injury on future earning capacity.
See Medwick v. Bd. of Review, Div. Empl. Sec.,
69 N.J. Super. 338,
340-341 (App. Div. 1961). In this state the workers' compensation
system, unlike the unemployment compensation system, is not
governmentally funded.See footnote 1 Rather, it is primarily paid for by
employers through their insurance premiums or self-insurance funds
and the costs passed on to consumers. See Romanny v. Stanley
Baldino Const. Co.,
142 N.J. 576, 580-581 (1995). Thus, as
explained by Judge Conford in his dissenting opinion in Marcus v.
Eastern Agricultural Ass'n, Inc.,
58 N.J. Super. 584, 596 (App.
Div. 1959), rev'd on dissent,
32 N.J. 460 (1960), the purpose of
workers' compensation is not only to provide a prompt monetary
remedy for workers injured in the course of their employment, but
also to do so by a system in which the cost of industrial accidents
is borne by the consumer as part of the cost of the product or
service. See also Livingstone v. Abraham & Straus, Inc.,
111 N.J. 89, 94-95 (1988); Lefkin v. Venturini,
229 N.J. Super. 1, 10-11
(App. Div. 1988). The private-sector responsibility for payment of
workers' compensation also serves the significant public purpose of
encouraging employers to take steps to advance and promote
workplace safety. Eger v. E.I. Du Pont DeNemours Co.,
110 N.J. 133, 140 (1988); Stephenson v. R.A. Jones & Co., Inc.,
103 N.J. 194, 217 (1986) (Stein, J., dissenting).
We think it plain that none of these predicates is in the
least degree compromised by the eligibility of an injured illegal
alien for workers' compensation. Surely, the effect on the worker
of his injury has nothing to do with his citizenship or immigration
status. If his capacity to work has been diminished, that
disability will continue whether his future employment is in this
country or elsewhere. Moreover, his need for medical treatment and
his right thereto as an incident of his employment do not derive
from or depend upon his immigration status. They are, rather, a
function of work he has actually performed during the course of
which he sustained an injury.
We also regard the desideratum of workplace safety enhanced by
according workers' compensation benefits to an illegal alien since
an employer's immunity from payment of compensation to that class
of employees might well provide a disincentive to assuring
workplace safety. Moreover, such an immunity from accountability
might well have the further undesirable effect of encouraging
employers to hire illegal aliens in contravention of the provisions
and policies of the Immigration Reform and Control Act. See
Montoya v. Gateway Insurance Company,
168 N.J. Super. 100, 104
(App. Div. 1979).
There are, however, even more fundamental reasons, in the
absence of an express statutory bar, for according illegal aliens
the benefit of the workers' compensation laws. To begin with, as
we explained in Montoya, id. at 103-104, "a well established body
of law holds that illegal aliens have rights of access to the
courts and are eligible to sue therein to enforce contracts and
redress civil wrongs such as negligently inflicted personal
injuries." We fully subscribe to that proposition. As we have
pointed out, workers' compensation rests upon both contract and
tort principles....the contract right in effect substitutes for the
tort right an employee would otherwise have. It would not only be
illogical but it would also serve no discernible public purpose to
accord illegal aliens the right to bring affirmative claims in tort
for personal injury but to deny them the right to pursue the
substitutionary remedy for personal injuries sustained in the
workplace, particularly since, in the end, the right to workers'
compensation is as much an incident of the employment as the right
to receive salary, and has been earned once the labor has been
performed. In short, we are in full accord with the holding in
Montoya which recognized that in respect of illegal aliens, the sui
generis nature of unemployment compensation and the considerations
uniquely relevant to its administration are not transferrable to or
in any way applicable to the alien's right to prosecute personal
injury claims. And workers' compensation is, in the end, a
personal-injury remedy.
For the reasons we have herein expressed, we also disagree
with the compensation judge's perception that workers' compensation
must be denied to an illegal alien because his contract of
employment is illegal pursuant to federal law. First, as we have
noted, a rule of law denying workers' compensation to an illegal
alien is more likely to encourage than to deter employers in
employing illegal aliens. Such a rule would therefore disserve the
public policy expressed by federal law. Beyond that, as we held in
Montoya, id. at 106, in the context of an illegal alien's right to
income protection benefits under personal injury protection
coverage, a distinction must be drawn between "work which, in and
of itself, violates law and work which, although lawful, is engaged
in by a person under a disability to do it." We concluded there
that as a matter of fundamental fairness, the disability under
which an illegal alien nevertheless works does not justify
withholding from him the privately funded benefits to which his
labor would otherwise entitle him. We see no essential difference
in this respect between income continuation benefits under a PIP
policy and workers' compensation benefits under an employer-funded
insurance program.
Finally, we note that other states that have considered this
issue in the absence of an "availability for work" requirement in
their workers' compensation statutes have uniformly afforded
illegal aliens a compensation right. See Gene's Harvesting v.
Rodriguez,
421 So.2d 701 (Fla. Dist. Ct. App. 1982); Commercial
Standard Fire & Marine Co. v. Galindo,
484 S.W.2d 635 (Tex. Civ.
App. 1972); Testa v. Sorrento Restaurant, Inc.,
197 N.Y.S.2d 560
(N.Y. App. Div. 1960); see also Bateman, Annotation, Validity,
Construction, and Application of Workers' Compensation Provisions
Relating to Nonresident Alien Dependents,
28 A.L.R. 5th 547 (1995).
We also note that this view is generally supported by legal
scholars as well. See Reich, Environmental Metaphor in the Alien
Benefits Debate,
42 UCLA L. Rev. 1577, 1593 (1995); Reich, Public
Benefits for Undocumented Aliens: State Law Into the Breach Once
More,
21 N.M. L. Rev. 219, 239-241 (1991). See also Bosniak,
Exclusion and Membership: The Dual Identity of the Undocumented
Worker Under United States Law, 1
988 Wis. L. Rev. 955, 978, 1033-1035 (1988); but see Miele, Note, Illegal Aliens and Workers'
Compensation: The Aftermath of Sure-Tan and IRCA, 7 Hofstra Lab.
L. J. 393, 405-408, 412-413 (1990) (arguing that eligibility of
illegal aliens for workers' compensation benefits conflicts with
IRCA's policy of discouraging the employment of undocumented
aliens).
The order dismissing the claim petition is reversed and we
remand for further proceedings on the merits.
Footnote: 1As explained by Brambila, supra, 124 N.J. at 431-432, the unemployment compensation system is funded both by taxes on employers and federal and state grants.