A judge in Jefferson County, Ala., has ruled that home builder Henry Lambert Construction must pay workers' compensation benefits for life to an illegal Hispanic worker who is now partially paralyzed from a March 2004 fall. He was 17 at the time of the injury. Last October, Jefferson County Circuit Judge G. William Noble ordered the builder to pay Omar Santos-Cruz $240 a week for life as well as all medical expenses resulting from the fall. Benefits will be paid by the Alabama Home Builders Self Insurers Fund, the nonprofit organization that manages workers' compensation insurance for more than 8,000 members statewide.
According to the original complaint, Santos-Cruz was framing a house when he slipped through a window opening and fell 12 feet to the ground. Santos-Cruz was flown by helicopter to Children's Hospital in Birmingham, Ala., where he arrived in critical condition and was placed in the intensive care unit.
The case brought the issue of illegal workers to the forefront, underscoring for home builders that even if an illegal employee is hired by a subcontractor, for the purposes of workers' compensation insurance, the builder is ultimately responsible for the workers on the jobsite.
“The issue in this case is whether an illegal worker in the United States is covered under the Alabama Workers' Compensation Act,” says Frederick L. Fohrell, an attorney for the HBA of Alabama. “The judge ruled that an alien is an employee regardless of his legal status and would be covered,” he says.
Both Henry Lambert Construction and the HBA of Alabama indicated they would not be appealing Judge Noble's decision.
Vicenta Bonet Smith, the attorney for Santos-Cruz, says builders have a weak case.
“Imagine the situation,” she says, if the judge agreed with the builders that an illegal alien was not entitled to workers' comp benefits. “It would have said employers can abuse the workers all they want and [the workers] have no recourse under the law,” says Smith.
“Everyone would hire illegals,” she maintains, since there would be no chance the illegal worker could ever collect a claim.
Russell Davis, executive vice president of the HBA of Alabama, says the case brings up some troublesome issues.
“The Hispanic tradesmen are an integral part of the industry here in Alabama,” says Davis. “Without these folks being here, we would not be able to run at capacity,” says Davis, who adds that the HBA is holding seminars around the state that explains the Santos-Cruz case to its membership, as well as ways builders can protect themselves from liability.
LynchRyan, a workers' compensation firm based in Wellesley, Mass., that works closely with general contractors, says the first step is for builders to ask their subcontractors for a stamped copy of the insurance certificate that lists the builder as an additional insured party. “Any sub's insurance agent should be able to give you that,” says Tom Lynch, the firm's president.
HBA attorney Fohrell says that while the Santos-Cruz case doesn't have the full weight of a state appellate court decision or a U.S. Supreme Court opinion, it does represent evolving case law.
“While the case is a state trial court decision and has no legal authority outside of Alabama, it will be cited in other cases,” Fohrell says.