Can an undocumented immigrant or an illegal alien file a Maryland Workers Compensation claim?

The simple answer is yes an undocumented immigrant or an illegal alien can file a Maryland Workers Compensation claim . In the case of Design Kitchen and Baths v. Lagos 388 Md. 718, 882 A.2d 817 (2005) the Maryland Court of Appeals stated “We hold that an undocumented worker injured in the course of his employment is a “covered employee” under § 9-202 and, therefore, is eligible to receive worker’s compensation benefits. The undocumented should be entitled to all of the same benefits as a documented employee except for vocational rehabilitation benefits until the undocumented workers can change his status so that he would be able to legally work. Other than vocation benefits, the undocumented worker would be entitled to lost wages, medical expenses and a permanent injury award.

The reasoning for that case was as follows.

The definition of “covered employee” is set forth in Md. Code (1991, 1999 Repl.Vol.), § 9-202 of the Labor and Employment Article. It is:

“(a) In general. — Except as otherwise provided, an individual, including a minor, is a covered employee while in the service of an employer under an express or implied contract of apprenticeship or hire.

“(b) Unlawful employment — Minors. — A minor may be a covered employee under this section even if the minor is employed unlawfully.”

Pursuant to subsection (a), an employee must meet two conditions to qualify as a “covered employee,” he or she must: (1) be “in the service of an employer”; and (2) that service must be in connection with “an express or implied contract of apprenticeship or hire.” Subsection (b) makes express, as to minors, what subsection (a) does not explicitly address with respect to other employees, that unlawful employment of a minor does not preclude the minor from being a “covered employee.”

Both parties agree that § 9-202 is not ambiguous. We also agree. Moreover, we have no doubt that the clear and unambiguous language of § 9-202 encompasses undocumented aliens. The statute plainly and simply states that, “[e]except as otherwise provided,” a “covered employee” is characterized by two elements: he or she, pursuant to “an express or implied contract of apprenticeship or hire” is “in the service of an employer.” When the plain language of the statute is applied to the factual circumstances sub judice, without giving it a liberal interpretation in favor of the appellee, the appellee nevertheless clearly qualifies on both accounts.

This result is consistent with, and indeed furthers, the purpose of the Workers’ Compensation Act, to “protect employees, employers, and the public alike.” Polomski v. Mayor and city Council of Baltimore 344 MD 70, 70,76,684 A.2d.1338,1341 (1996). As we explained in Polomski,

“To be sure, the Act maintains a no-fault compensation system for employees and their families for work-related injuries where compensation for lost earning capacity is otherwise unavailable. See Bethlehem Steel v. Damasiewicz, 187 Md 474,480,50A.2d.799,802 (1947). At the same time, however, the Act also recognizes the need to protect employers from the unpredictable nature and expense of litigation, and the public from the overwhelming tax burden of `caring for the helpless human wreckage found [along] the trail of modern industry.’ Ligget & Meyers Tobacco Co v. Goslin 163 Md 74,80,160 A.804,807 (1932).”

Id. at 76-77, For these same reasons, public policy also favors the inclusion of undocumented workers as “covered employees” under the statute. Exclusion of this class of persons from the statute’s coverage would retard the goals of workers’ compensation laws and leave these individuals with only two options, receive no relief for work related injuries or sue in tort. Moreover, without the protection of the statute, unscrupulous employers could, and perhaps would, take advantage of this class of persons and engage in unsafe practices with no fear of retribution, secure in the knowledge that society would have to bear the cost of caring for these injured workers.

“The primary purpose of the Immigration Reform Act was to establish procedures that make it more difficult to employ undocumented workers and to punish employers who knowingly offer jobs to those workers. National Labor Relations Board v. A.P.R.A. Fuel Oil Buyers Group, Inc., supra, 134 F.3d [50] at 55-56; The Immigration Reform Act itself gives no indication that Congress intended the act to preempt state laws whenever state laws operate to benefit undocumented aliens. Indeed, [‘] it is clear from [the] legislative history [of the Immigration Reform Act] that Congress anticipated some conflict between the new statute and various state … statutes.”

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