§ 4.5 Unemployment and Workers' Compensation Issues for Attorneys with Clients with Immigration Issues

• Library: Rights of Foreign Nationals (OSBar) (2020 Ed.)

§ 4.5 UNEMPLOYMENT AND WORKERS' COMPENSATION ISSUES FOR ATTORNEYS WITH CLIENTS WITH IMMIGRATION ISSUES

§ 4.5-1 Entitlement to Workers' Compensation Benefits

Immigration status should not be a coverage issue when a worker files a workers' compensation claim for injuries the worker suffered as an employee in the workforce. A worker is covered whether "lawfully or unlawfully employed." ORS 656.005(30). However, there may be other issues surrounding the hiring of the illegal noncitizen that would affect coverage. For instance, termination issues (discussed below and in § 4.5-3) will affect the extent of coverage in the workers' compensation system. For example, the restriction in ORS 658.440(3)(d) on hiring "an alien not legally present or legally employable in the United States" should be considered.

An undocumented worker's injury, like any other worker's injury, will be compensable if the worker can prove that the injury arose "out of and in the course of employment." ORS 656.005(7)(a). Workers' compensation benefits include temporary disability (time-loss) benefits, subject to restrictions. See ORS 656.210; ORS 656.212. This general rule also applies to interim compensation (after the filing, but before formal claim acceptance or denial). See ORS 656.262(4); see also Nix v. State Accident Ins. Fund, 80 Or App 656, 658 n 2, 723 P2d 366, rev den, 302 Or 158 (1986) (citing Jones v. Emanuel Hosp., 280 Or 147, 570 P2d 70 (1977), in which the phrase interim compensation was coined). Immigration status can, however, affect the duty to pay time-loss benefits. For example, a physician's release to work may allow an end to payments by offsetting those...