Daniel DeMay, Esquire & Samuel Earp, Esquire
The firm’s Sarasota, Florida, team scored a major victory August 7, when they defeated an illegal immigrant’s bid for workers’ compensation permanent total disability benefits. It’s a case that could have broad implications for the Florida workers’ compensation community and the industry of professional employer organizations (PEOs) as a whole.
The Claimant had illegally entered the United States from Mexico, was deported, and then re-entered illegally a second time. This time, he obtained a job with his brother’s stucco company. The stucco company used the services of a PEO for its payroll and workers’ compensation insurance coverage. The Claimant admitted that he had provided his brother with a fake Social Security card, fake U.S. permanent resident card, and fictitious data on an I-9 form. The brother then provided those materials to the PEO so that the PEO would onboard the Claimant as one of its co-employees.
The PEO’s risk manager testified at trial that the PEO was unaware until after litigation had started that the Claimant was an illegal alien. He said the PEO had relied upon the seemingly legitimate documentation that the stucco company had provided to the PEO, which supposedly demonstrated the Claimant’s eligibility to work in Florida.
Less than two months later, the Claimant sustained a serious accident when he fell off scaffolding and fractured his left foot. The PEO and its workers’ compensation carrier provided extensive and costly treatment, which included four orthopedic surgeries, two plastic surgeries, hyperbaric oxygen therapy, and custom orthotics. Medical and indemnity benefits cost the carrier about three-quarters of a million dollars.
Once the Spanish-only speaking Claimant had reached a plateau in his recovery, he filed a claim for permanent total disability benefits. If successful, the 46-year-old Claimant would have received benefits checks every two weeks until age 75, with a 3 percent cost-of-living increase annually.
On behalf of the PEO and its carrier, the Sarasota team mounted an aggressive and thorough defense. They retained a highly skilled vocational rehabilitation expert, deposed treating and examining physicians, and took depositions of the Claimant and lay witnesses.
Following an exhaustive review of the evidence, the Judge of Compensation Claims entered a 28-page order in which the JCC agreed with the two primary defenses: 1. The Claimant did not suffer from restrictions or limitations that rendered him permanently and totally disabled; and 2. The Claimant’s status as an illegal alien, who was prohibited from working in Florida, was the main reason why he could not return to gainful employment. Therefore, the Claimant could not prove that his work injury represented the major contributing cause of his loss of wage-earning capacity.
The case is Leal Espinoza v. Encore PEO, Inc., and its affiliated companies, and CCMSI, OJCC Case No. 23-014771RLY. Click here for the Final Compensation Order.
