Does Workers’ Comp Cover Illegal Immigrants?

Workers’ compensation was initiated to encourage employers to keep working conditions safe for their employees – or pay the consequences. As such, the law does not allow for any discrimination based on work status.

Yet, in our firsthand experience, some employers and insurance companies may try to convince workers who are not U.S. citizens to settle for much less than they may be entitled to – or even deny them benefits altogether. We’ve had some insurance adjusters tell our clients that they’re “lucky to get any amount” no matter how small it is, just because they are undocumented. This is not true. We’ve also had some employers lie to our clients (and to us!) to try to avoid paying benefits. This is not acceptable.

I know of non-U.S. workers, especially those who are not in the country legally, who are afraid of repercussions and are willing to accept any settlement offered just to avoid making a claim. In the construction industry, for example, 75% of non-fatal injuries to Hispanic workers go unreported, according to the Center for Construction Research and Training.

I have been helping protect workers’ rights for more than 25 years, and I have seen how illegal immigrants may be mistreated by some employers when it comes to workers’ compensation benefits. In this article, I will answer some of the common questions that I hear from undocumented workers in North Carolina.

Am I Eligible to Receive Workers’ Compensation Benefits as an Undocumented Worker in North Carolina?

Yes, you may be eligible to receive workers’ comp benefits – even if you are an illegal immigrant. In North Carolina, workers’ compensation benefits can’t be denied to any person because he or she is not a U.S. citizen.

Workers’ compensation law applies to employees, and it defines an “employee” as follows:

“The term ’employee’ means every person engaged in an employment under any appointment or contract of hire or apprenticeship, express or implied, oral or writtenincluding aliens, and also minorswhether lawfully or unlawfully employed…”

NC General Statute 97-2-2 expressly includes illegal aliens in the Workers' Compensation Act.The law assumes that your employer has automatically agreed to pay compensation for an eligible personal injury or death by accident that happens while you are doing your job.

In North Carolina, almost every employer with three or more employees has to offer workers’ compensation to all of their employees, and that includes undocumented workers, too. No matter how the employment agreement was (or wasn’t) made, you may be covered for your injuries, even if you have nothing in writing.

In the end, it typically doesn’t matter under the law if you are undocumented, or if the work relationship was by verbal agreement, or if you had a contract in writing. Any employee who suffers an injury or an accident while on the job may be entitled to workers’ compensation.

It’s straightforward in North Carolina. Are illegal immigrants eligible for workers’ comp? Yes.

What Types of Workers’ Comp Benefits May I Receive?

If you are an undocumented worker in North Carolina, you may be entitled to the same types of workers’ compensation benefits as U.S. citizens, such as:

  • Lost wages
  • Payment for medical bills
  • Payment for permanent injury to a body part

In the video below, I go into more detail on each of these three major types of workers’ comp benefits:

Having a right to these benefits and actually receiving these benefits are two different things. Unfortunately, undocumented workers may encounter abusive practices by some employers and insurance companies who want to limit their expenses.

Don’t be intimidated. Arm yourself with knowledge about your rights. Talk to a workers’ comp attorney as soon as you are injured. Contact the Law Offices of James Scott Farrin for a free and confidential case evaluation today.

Can I Negotiate Benefit Amounts With the Insurance Adjuster?

You can try, but I don’t advise that you attempt to negotiate workers’ comp benefits amounts on your own. There is no magic workers’ comp benefits calculator, and every case is unique. I advise you to find an experienced attorney who will know which questions to ask of the doctors, how to read the medical reports, and how to negotiate with the insurance adjuster. That way, you can focus on your recovery while your attorney takes care of everything else.

What Do I Do if My Employer Claims That I Don’t Work for Them?

Sadly, this can happen occasionally. But, the fact that your employer lied about your employment does not necessarily have to result in you being denied workers’ comp benefits. Here’s a real-life story that demonstrates the extremes some employers may go to in order to skirt their responsibility to their employees:

We took on a case of an injured worker who was not a U.S. citizen and had sustained a catastrophic injury at work. Although the employer hired this undocumented worker, after the injury they denied any knowledge of him. And if that’s not disgraceful enough, the workers’ compensation insurance company sided with the employer and rejected our client’s claim.

A non-U.S. citizen working in a field of green vegetables.Left with severe disabling injuries, no job, and no income to pay for a place to live, the injured worker retained our firm for help. As if the blatant deceit on the part of the employer and insurance company were not enough, what underscored this situation for our team working with this client was that the insurance company was rudely unsympathetic toward our client’s precarious circumstances.

We felt that this treatment should not be tolerated. We obtained documentation that proved the employer had lied – lied about our client’s employment and lied about not having anything to do with him. And we turned a denied workers’ comp case for that injured worker, who had little education and little recourse outside of our representation, into a six-figure settlement.1 

If you were injured on the job, and your employer is denying your employment, give the Law Offices of James Scott Farrin a call at 1-866-900-7078 for a free and confidential case evaluation. Workers’ comp for undocumented workers can be complicated. We have experienced attorneys who have tackled many of the different tactics some employers may use to avoid paying workers’ comp benefits. And we are dedicated advocates for our injured clients, including illegal immigrants and undocumented workers.

Can I Receive Workers’ Comp With a Fake Name or Social Security Number?

While you should not use a fake name or a fake social security number, you may be entitled to workers’ comp benefits even if you did use a fake name and Social Security number with your employer.

In the landmark case Gayton v. Gage Carolina Metals, Inc., Ruperto Gayton, an undocumented worker who had presented a false Social Security card and a false resident alien card when he was hired, injured his back while he was moving a pallet, and he herniated two discs. The court ruled that Mr. Gayton was entitled to workers’ compensation benefits.

The insurance company and employer (who had built a case around trying to get out of its responsibilities, not about whether Gayton had presented fake documents) accepted the claim and began paying for his Temporary Total Disability.

Can I Get Workers’ Comp Benefits if My Employer Misclassified Me as an Independent Contractor?

If you can prove that your employer deliberately misclassified you as an independent contractor, you may still be able to seek workers’ comp benefits. Some employers may intentionally misclassify workers as independent contractors to avoid paying payroll taxes, contributing to Social Security, or paying workers’ comp and unemployment insurance. This is an abuse of power and influence.

If your employer gave you a 1099 tax form instead of a W-2, they are treating you like an independent contractor, and you do not have eligibility for workers’ compensation benefits if you are injured on the job. I strongly advise you to seek the assistance of a workers’ comp attorney to fight for those benefits if you feel that you have been purposely misclassified.

How Can a Lawyer Help My Workers’ Compensation Case?

A skilled lawyer can help you with your workers’ compensation case in many ways. The process of applying for benefits can be tricky, and the process for appealing a denied claim can be downright intimidating!

A lawyer can help you:

  • Stick to the schedule and not miss important deadlines
  • Follow the required procedures and avoid mistakes
  • Try to obtain needed medical care and follow-up treatment
  • Fight to protect your rights at work
  • Negotiate with the other side

Unfortunately, some employers may try to take advantage of undocumented workers who don’t know their eligibility for workers’ comp benefits. I know of situations where employers have even bullied or threatened the workers because they don’t want to pay workers’ comp for undocumented employees.

But workers’ compensation laws were created to protect employees, regardless of their immigration status, and undocumented workers should not sacrifice their rights. I know this well – when I was a North Carolina state senator for four terms, I helped write some of those workers’ comp laws for our state.

I also served as a Deputy Commissioner at the North Carolina Industrial Commission and presided over 500+ workers’ comp hearings. And at the Law Offices of James Scott Farrin, our workers’ compensation department has been recognized by U.S News – Best Lawyers® as one of the “Best Law Firms” for workers’ compensation for the greater Raleigh area in 2019, 2020, and 2021.3

We know workers’ comp, and we care. Our team will fight to try to get undocumented workers compensation for their work-related injuries. Contact us today and tell them you mean business.

 

3For more information regarding the standards for inclusion for U.S. News – Best Lawyers® “Best Law Firms,” visit: https://bestlawfirms.usnews.com/.

While no two workers’ compensation cases are alike, all of them have one thing in common. When you file a claim for workers’ compensation benefits, the insurance adjuster will likely ask you to give a recorded statement, and then the adjuster will ask questions and you will answer them.

This blog addresses a critical question you will probably be asked that can make or break your North Carolina workers’ compensation claim: “Were you doing your usual work routine when this happened?”

What is Considered “Usual” or “Unusual”?

In North Carolina, if you have sustained an injury to a body part other than your back as a result of a specific incident at work, the injury must generally be the result of an unusual set of circumstances for you to obtain coverage. However, if the injury is the result of a usual activity that you routinely do at work, it may not be covered.

  • For example, an auto repairman may routinely get down on one knee to change a tire. If, on a particular occasion, he kneels in the same manner as he routinely does and sustains a meniscus tear to his knee, the injury will probably not be covered.

Insurance companies are typically for-profit businesses. And some may look for any reason to try to deny some claims. Leaving out factors that show that the circumstances resulting in your injury were unusual at the time of the injury may result in an initial denial of your claim or a denial within 90 days of the notice of your claim.

What Are Common Questions You May be Asked in a Recorded Statement?

Below are a few of the questions that insurance companies commonly ask of injured workers:

  • Were there any witnesses who saw the accident?
  • What type of injury did you sustain from the accident?
  • Were you under the influence of alcohol or drugs?

The following list includes several important and potentially trickier questions that, if answered incorrectly, can harm your claim:

  • What, if anything, unusual occurred that resulted in your injury?
  • Isn’t it true that you were doing your usual job routine when you were injured?
  • Did anything unusual happen?
  • Wasn’t it a normal work day?
  • You’ve been asked to perform that duty before with no issues, right?
  • You only injured your knee (or other body part), right?

Now that you are familiar with the types of questions that you may be asked in a recorded statement, let’s review how to answer them.

How to Answer Insurance Adjuster’s Questions

When you sustain a work-related injury, it is important that you provide a detailed explanation about how your injury occurred. Omitting relevant facts could result in denial of your claim even if your employer or the workers’ compensation carrier initially authorizes you to receive medical treatment and compensation payments.

The North Carolina Workers’ Compensation Act allows your employer and the workers’ compensation carrier to make these payments from up to 90 days after receiving notice of your injury.

The more serious your injury is or becomes, the greater the financial incentive the employer, and/or the workers’ compensation carrier, may have to deny your claim – especially if you have left out relevant factual information in a written accident report and/or a recorded statement. There are several ways that what you say in your workers’ comp recorded statement can trap you, so we recommend that you have an attorney present or on the phone with you when making this statement.

How to handle a recorded statement for workers' compensation - have an attorney present or on the phone.

What to Watch for in the Recorded Statement

If you have been injured at work, the insurance adjuster may still request that you participate in a recorded statement even if you’ve been authorized to receive medical treatment for the work-related injury and/or have received compensation payments. North Carolina insurance claims adjusters know that if they are able to get you to agree that the injury was the result of how you usually performed the activity, then they may be able to legally deny the claim.

The Workers’ Comp Adjuster’s Open-Ended Questions

Adjusters sometimes ask fair open-ended questions during the recorded statement to try to get you to say nothing unusual happened.

Example: “What, if anything, unusual occurred that resulted in your injury?”

It is important when asked an open-ended question by a workers’ comp insurance adjuster that you describe all possible unusual factors that may have resulted in your injury.

The Workers’ Comp Adjuster’s Trick Questions

On the other hand, some workers’ compensation adjusters seem to try to trap the injured employee. They might ask a leading question to try to get a specific answer in their favor.

Example: “Isn’t it true that you were doing your usual job routine when you were injured?”

Be truthful, but careful in how you answer this question. They may ask it several times and in several different forms during the recorded statement. It is important that you describe all possible unusual factors that may have resulted in your injury.

We recommend that you secure legal advice before going on record with an adjuster. A lot is at stake, and every word you use or do not use to describe a work-related injury can affect the outcome of whether your claim is ultimately accepted or denied.

Get a FREE Evaluation From an Experienced Workers’ Compensation Lawyer

The workers’ comp insurance company may have its own financial interests in mind instead of how to help you heal and get back on your feet. If your claim is denied because you left out relevant facts in a written accident report or in a recorded statement, we urge you to seek legal counsel. Ideally, contact us or call us at 1-866-900-7078 before you proceed with a recorded statement.

Here at the Law Offices of James Scott Farrin, our workers’ compensation team has successfully helped thousands of injured employees.1 And we can fight for you, too.

A man and woman having a serious conversation behind a windowSo the workers’ compensation insurance company denied your claim for benefits for a work related injury.

The only way an insurance company can be made to pay benefits to an injured worker is to secure an order from the Industrial Commission requiring payments be made to you.

 

1. How can I get the Industrial Commission to make my insurance company pay?

Your attorney will need to request a hearing by filing a Form 33. Your attorney will then have to prove you should receive benefits at a hearing before the Industrial Commission.If the Industrial Commission agrees with your position, then it will issue an order requiring the insurance company to pay you benefits.

2. Do I have to hire an attorney in order to obtain a hearing before the Industrial Commission?

No, you do not necessarily have to hire an attorney. However, your employer and the insurance company will likely be represented by a highly-skilled attorney who will fight to prevent you from receiving benefits.

3. How long will it take to have my claim set for hearing?

Before a hearing is set for your case, the Industrial Commission will require you and your attorney to meet with representatives of the insurance company and their attorney in order to see if you and the insurance company can agree to settle this matter – usually for a lump sum cash settlement. This meeting or mediation takes place usually within 60 to 90 days after you have hired an attorney. If a settlement can’t be reached between you and the insurance company, then the Industrial Commission will set up a hearing/trial within two months of the mediation date.

4. Will my claim be heard by a judge or a jury?

Your claim will be heard and decided by 1 of 20 judges who hear cases across the state of North Carolina. There is no jury trial like you see on “Matlock” or “The Good Wife.” The judge will swear you in as a witness and your attorney will ask you questions about the circumstances that resulted in your injury, or any other matters that you have in dispute with regard to your claim. Your employer’s attorney will be able to cross-examine you at this hearing. Both you and your employer can present witnesses to support each side’s position in the case.

5. Where will my hearing take place?

Your hearing will be set at one of five locations closest to where you and/or your employer is located. The hearing location could require up to a two hour drive for you and your witnesses to attend.

6. How long does a hearing last?

A hearing typically lasts less than 4 hours. If the hearing is estimated to last more than 4 hours, the Industrial Commission will specially set it before one of three judges designated to hear lengthy cases.

7. How long does it take the judge hearing my case to decide whether I win or lose?

Unlike “Judge Judy,” the judge who hears your case will not render a decision on the day you testify. It will usually be months before a decision is made by the judge. Usually you and your employer will want doctors who have examined you or reviewed your medical records to testify. To try to build a strong case, you will need a doctor who treated you to give an opinion that the injury was likely caused by the work-related accident or incident you reported. You may also need to have a doctor testify about your ability to return to work for your employer as well as what treatment you need. Doctors are not required to attend a hearing and neither are any other witnesses. The judge hearing your case will typically issue an order giving you and your employer 60 days after the hearing to go to each doctor’s office and record the doctor’s testimony. Both your attorney and your employer’s attorney will likely ask questions of the doctor who treated you. The doctor’s testimony is then transcribed and a copy is sent to the judge who will read the testimony of each doctor.

8. Who pays to have the testimony of each doctor recorded and transcribed?

The employer will be required to pay for the cost of recording and transcribing of up to two doctors solely selected by you. If you have seen multiple doctors, then you may be required to pay the costs of additional doctors you want to testify. The taking of the testimony of a doctor is called a deposition. Depositions can cost in excess of $1000.

9. How soon does the judge decide whether I win or lose after he or she receives copies of the doctors’ depositions?

The judge will issue an order giving your attorney and your employer’s attorney 30 days to send the judge a written copy of each side’s argument as to why the judge should rule for or against you.

10. I’ve waited a long time – how soon will the judge decide whether I win or lose after receiving the written arguments?

The judge has up to 3 months to decide the case after receiving the written arguments. The judge will write an Opinion and Award and will mail copies to your attorney and your employer’s attorney.

11. If I win, how soon can I expect to receive monetary benefits the judge ordered the insurance company to pay?

Typically, the insurance company will not pay the amount ordered by the judge if it loses the case. They will then appeal the judge’s decision to the Full Commission.

12. If I lose, do I have a right to appeal the decision?

Yes.

13. What is the Full Commission?

They are six appellate judges appointed by the Governor. They sit in groups of three judges hearing the appeal of the cases that were heard by the 20 trial judges. If two of the judges disagree with the decision made by the judge that heard your case, then the decision is overturned.

14. Will I be able to testify before the three Full Commission judges who will decide whether the trial judge’s decision in my case should be upheld or overturned?

No. When you and other witnesses testify before the trial judge, a recording is made of the testimony. If your case is appealed, a written copy of that recorded testimony is made and sent to the Full Commission. The Full Commission judges read the testimony and decide whether you win or lose. Even if the judge who saw you face to face believes you, the Full Commission judges can reverse that judge’s decision because they don’t believe you based upon the written testimony they have read. Your attorney and the insurance company’s attorney will be given 20 minutes to argue in front of the 3 judges at the Full Commission as to whether the decision by the trial judge who heard your case should be upheld or overturned. This hearing takes place in Raleigh at the Industrial Commission.

15. How long afterwards will I know whether I have won or lost my case after it is appealed to the Full Commission?

It takes 2-3 months for the Full Commission to set the 40 minute hearing for your attorney and the insurance company’s attorney to attend. Both sides are given time to submit written arguments on their positions as to how the judges should decide the outcome of the case. The Full Commission takes between 3 and 6 months to render their decision after the 40 minute hearing.

Read this if you’ve been denied benefits:

If you’ve been denied benefits, you could be in for a long ride, and we highly recommend you do not try to present your case in front of the Industrial Commission on your own.

Most workers’ compensation attorneys work on a contingency fee basis – meaning they will only take an attorney’s fee out of your final settlement, so you have no upfront costs.

At our firm, we have several NC Board Certified Workers’ Compensation Specialists and two former Industrial Commissioners.  Tell us about your case and get a free case evaluation. Or call us at 1-866-900-7078.