Constitutional Convenience

By: Jen Jordan

I read the ProPublica/NPR article yesterday about Florida employers/insurers reporting their undocumented injured workers to immigration in order to avoid paying benefits and found myself torn about how I felt about the article. I never like seeing stories about how badly people in our industry behave when given an opportunity such as this to save money. Stuff like this perpetuates the bad reputation that continues to plague our industry. No matter how badly we try to focus on the good, bad actors always ruin it somehow. But in this case, I found that there were two bad actors in play here, yet one was not being called to task to take responsibility for his wrong doing. 

Yes, it is abominable what Normandy Harbor Insurance did to Nixon Arias to avoid paying benefits, but if Mr. Arias had entered the United States legally, none of what happened to him following his work injury would have occurred. That certainly does not forgive the insurer for attempting to shirk its legal responsibilities to the injured worker, as the article clearly pointed out that most state laws do provide workers’ compensation benefits to undocumented immigrants. In most other states, Mr. Arias would likely still get his benefits while in Honduras as the insurer would still owe them under the state law regardless of his residency. But Mr. Arias chose to reside in Florida where in 2003, the legislature made it illegal to file a workers’ compensation claim using false identification. Yes, Mr. Arias is a good guy who purchased a dead person’s social security number in order to obtain a job to provide for his family and even paid taxes using that social security number for which he personally received no credit for contributions toward disability and Medicare programs. But at the end of the day, he broke many laws in the process so he is not completely innocent here. I feel horrible about Mr. Arais being separated from his family, but he had to know that this could happen one day when he entered the country illegally. 

The article alludes to this being a harbinger of things to come under the Trump Administration given the president’s stance on broadening immigration and customs enforcements. Love him or hate him, I can’t help but find the constant media attacks on “our” president unfair. Yes, “our” president. Again, love him or hate him, that man is the President of the United States because the plan laid out in the 12th Amendment of the U.S. Constitution says so and we need to respect that fact, particularly when he is doing nothing more than enforcing laws that already existed prior to his election. If we do not like a law as it exists, that is for the legislature to change and we elect them too. But if we wanted open boarders to any and all who wish to reside in the United States, then why was the man who openly campaigned on controlling our borders actually elected by a majority of the population. But I digress.

Mr. Arais is not a victim of the Trump administration or anyone else for that matter despite the way he was depicted. Aside from violating immigration laws, Mr. Arais also separately violated state workers’ compensation law. Technically the article argues that he didn’t use his fake identification to file the comp claim, just obtain the employment, however he was deported because he violated immigration laws even if he may have a creative defense with regard to the state workers’ compensation laws violation. Now why we have laws that allow an employer go unpunished for employing an individual with questionable identification that magically only gets determined to be fake upon the occurrence of a work injury is a question for the state legislature. 

Workers’ compensation has become perceived as an entitlement rather than the result of the Grand Bargain struck a century ago when our country was much more industrial and safety not a great concern to manufactures. In a panel on the topic at the WCI conference last week, one panelist noted that for the most part, the workers’ compensation system works for about 90 percent of all injured workers, yet we focus all of our time talking about the other 10. Another panelist responded that if the system even fails one injured worker, that it is not working. But the comment that was most memorable was why do we imagine that we have a remedy when we are injured, as there is no such constitutional provision. States voluntarily enacted workers’ compensation laws that have evolved over time into this out of control beast and people lose sight of the fact that most state constitutions permit the repeal of those laws. Neither the U.S. Constitution nor any federal law requires a mandatory state workers’ compensation system so perhaps those complaining about the degradation of benefits should be careful that all comp laws aren’t repealed and replaced. South Carolina already has a piece of legislation that would turn the state into another Texas, so it is an entirely feasible proposition. But again, I digress. 

So despite the overwhelming sympathetic bent of the story, the system did not fail Mr. Arais, he failed himself when he entered the country illegally. Perhaps it could be said that the Florida legislature failed him in passing such a law, but given that he is not a legal resident of the state, he is not a constituent whose voice is represented there. Despite the egregious manner of the act performed by the insurer, he broke several laws, was processed in accordance with said laws and was returned to his country. So as awful as it feels when reading this story, it was the proper outcome given the circumstances. 

Now while I can’t be completely certain that Dave would have taken this same position here, I do believe he would want his blog continuing to provoke thought, particularly in what I imagine will be perceived as an unpopular position. Hope this meets his approval.