THE STATE

(Columbia, South Carolina)

March 21, 2005

Bills would end aid to injured illegals
Who pays when an illegal worker is hurt on the job is a growing issue in South Carolina. Under workers’ compensation laws, residency does not matter, but legislators are considering rewriting the rules.


Staff writer

Cinthia Duenaz used a fake Social Security card and work permit to get a job slicing skins and bones from chicken breasts at a Gold Kist plant in Sumter.

Her first name on her job application — Cinthia — was spelled differently from the “Cynthia” on her work permit.

Gold Kist either did not notice or did not care that Cinthia was an illegal immigrant.

The company, however, did care about Duenaz’s legal status when she fell off a stool at work and needed medical treatment. Gold Kist tried, unsuccessfully, to refuse paying for her treatment.

Duenaz isn’t alone.

Antonio, a 19-year-old illegal worker who lost his leg in an accident two years ago, also ran into the same problem when it came time to pay his hospital bills.

Attorneys who represent illegal aliens in workers’ compensation cases say insurance companies often try to deny payments.

Duenaz hired an attorney to file a workers’ compensation claim on her behalf. Gold Kist denied the claim, saying Duenaz was not covered because she was an illegal worker.

But the S.C. Workers’ Compensation Commission ruled in Duenaz’s favor this month. Under workers’ compensation laws, legal residency does not matter.

But bills filed before the S.C. Legislature would change that.

Who pays when an illegal worker is injured on the job increasingly is an issue in South Carolina, where hundreds of immigrants arrive each year to work. They often take on dangerous jobs for low wages and are injured at higher rates than other workers.

Many do not speak English, so they don’t understand safety instructions — if they receive training at all.

Illegal immigrants also rarely understand federal and state employment laws, so they do not know the protections they are entitled to receive.

This gives employers a chance to take advantage of the workers, especially after they get hurt, advocates for the workers say.

People who do not want illegal aliens in the community think the workers should lose protection when they sneak into the country and then lie about their status to get a job.

PUSHING LEGISLATION

In January, two state representatives filed bills that would eliminate workers’ compensation claims for illegal aliens who obtain jobs through fraud, such as presenting fake ID cards and Social Security numbers.

The proposed changes are part of an effort to rewrite S.C. workers’ compensation laws.

The move to deny illegal workers’ claims has not progressed in the Legislature. But the move concerns the state’s Hispanic community, which makes up the largest number of undocumented workers.

“Obviously, we’re opposed,” said Edgar Medina, chairman of the S.C. Hispanic Leadership Council. “You want to have them here to work and sacrifice, but when something goes wrong, you don’t want to take care of them. It’s narrow-minded.”

The most notorious work accident involving Hispanics happened in January 2003, when two teenage brothers died while digging a trench at the Blythewood High School construction site.

Moises and Rigoberto Xaca were 17- and 15-year-old illegal aliens who showed fake documents to get hired. More than two years after the accident, a workers’ compensation settlement is pending in their deaths.

But the issue is larger than the Xacas.

Hispanic workers make up 3 percent of South Carolina’s population and account for about 20 percent of workplace deaths and injuries.

The year Moises and Rigoberto died in the trench, Hispanics represented a third of the 33 workers killed on the job in South Carolina. Last year, a fifth of the 34 workers killed were Hispanic. Almost a fourth of the 36 workers involved in serious injuries at work in 2004 were Hispanic.

NEEDING A DOCTOR

Duenaz, 35, moved to South Carolina in July 2001 to live with her daughter. Gold Kist hired Duenaz later that year.

She used a fake Social Security card and a fake “green card,” documentation issued by the U.S. Immigration and Citizenship Services, to prove she could work legally in the United States.

The company put her to work on its processing line.

Duenaz, who is less than 5 feet tall, was too short to comfortably reach the conveyer belt carrying the chicken. Her supervisor gave her a step stool.

Twice, she fell off.

When Duenaz visited the company infirmary, she received Advil and was told to see a doctor.

Unable to speak English and ignorant of workers’ compensation programs, Duenaz did not know Gold Kist was obligated to pay for a doctor’s visit. Suffering what she said was continuing pain in her back and shoulder, Duenaz quit Gold Kist in July 2003.

Another Mexican suggested Duenaz hire Lexington attorney Mark Calhoun.

Calhoun took the case before the S.C. Workers’ Compensation Commission, which settles disputes over workplace injury claims.

The commission ruled this month that Gold Kist must pay for Duenaz’s visit to an orthopedic doctor. It also must pay for a ride to the doctor’s office and for a translator to interpret during the visit, Calhoun said.

If the doctor decides Duenaz is disabled, the company will have to make disability payments.

Also, Gold Kist must pay some of Duenaz’s back wages from July 2003 to the present, when she was out of work because of the injury, Calhoun said.

“She didn’t trick them,” Calhoun said. “They got caught.”

Gold Kist, an Atlanta-based company whose 16,000 workers process 14 million chickens a week, would not comment on the case or its policies about hiring foreign workers, company spokeswoman Karla Harvill said.

DEBATING ILLEGALS

The bill before the S.C. Legislature would not stop illegal immigrants, such as Duenaz, from seeking jobs in South Carolina, Calhoun said.

Instead, he said, “If that bill was passed, it would allow employers to cheat. They could hire people who were illegal and, when they got hurt, they wouldn’t have to pay them.”

For now, the bills have stalled. However, Rep. Bill Leach, R-Greenville, and Rep. Bill Sandifer, R-Oconee, the bills’ sponsors, have said they will continue to push for the change.

When Sandifer first spoke about the bills during a House subcommittee meeting, he explained his reasoning.

“I don’t know how you could go home and tell your constituents how you allowed illegal aliens who cheated to claim workers’ comp,” Sandifer said. “I know I couldn’t.”

Later, Sandifer said paying workers’ compensation benefits to illegal immigrants only encourages them to come to South Carolina for work. Jobs belong in the hands of U.S. citizens and those who have gone through proper legal channels, he said.

It’s an opinion supported by many voters in a state with the nation’s fourth-highest unemployment figures.

The S.C. Chamber of Commerce generally supports changes to the workers’ compensation program — saying they would be better for business — but the organization has not specifically spoken on the illegal aliens issue.

Still, Tim Timmons, the chamber’s vice president for workplace relations, said workers who present false documents should not receive the same protection as workers who obtain their jobs legally.

“If you’re in this country illegally, I think we have a different level of commitment when it comes to employment issues,” Timmons said.

Jimmy Gibbs, business representative for Carpenters and Millrights Local Union 1778, said the practice of hiring illegal workers is rampant across South Carolina, especially in construction. Companies get away with it because no one enforces employment laws, he said.

“We could stop this immigration problem within a month if we would punish the companies that hire them,” Gibbs said. “They wouldn’t come over here if there weren’t jobs.”

ONE TEEN’S STORY

Most Hispanic workers leave poverty in their home countries to build a better life in the United States. Many migrate to the United States as teenagers.

In April 2003, Antonio, a 17-year-old Mexican, walked behind a trench-digging machine, burying cable lines near Lexington.

As he followed the metal teeth of the machine, the sandy soil collapsed beneath his feet.

“I fell, and the machine caught my pants, then my shoes and then my leg,” Antonio said. “I was stuck in the machine for 10 minutes while my friends tried to get it off me.”

A helicopter flew Antonio to a Columbia hospital, where he begged for relief from the pain of his mutilated leg. When Antonio — an illegal alien who did not want his real name used in this story — awoke from the anesthesia, his left leg had been amputated below the knee.

Antonio’s employer, who since has gone out of business, covered his medical expenses at first.

His employer’s insurance company, however, stopped paying, largely because Antonio was an undocumented worker, said Sherod Eadon, his attorney.

“They thought they could avoid paying Antonio, so they cut off his benefits,” Eadon said. “So here he is lying in the hospital with his leg cut off and his benefits cut off.”

Eadon was prepared to take Antonio’s case before the S.C. Workers’ Compensation Commission. Days before the hearing, the insurer agreed to pay.

“I was worried if they don’t pay this hospital bill, how would I pay because it’s too much,” Antonio said.

WHO PAYS?

If Antonio’s workers’ compensation insurance didn’t pay the bill, the hospital would have been forced to swallow the expense, Eadon said. In the end, the cost of Antonio’s indigent care would have been passed along to paying patients and taxpayers.

Insurers would be the big winners if illegal aliens are no longer allowed to receive workers’ compensation, Eadon said. They would not have to pay claims.

“It’s sounds good: ‘Illegal. They ought not be here,’” he said. “But it’s hypocritical.”

South Carolina isn’t the only state debating workers’ compensation for illegal aliens.

The Virginia Legislature killed a similar bill this year. Within the past year, a dispute over a claim by an illegal alien went to Michigan’s Supreme Court, which ruled in the worker’s favor, said Eric Oxfeld, president of UWC-Strategic Services on Unemployment and Workers’ Compensation, a Washington, D.C., group that represents employers.

Oxfeld said he does not think it is good public policy to eliminate claims for illegal workers.

Under most workers’ compensation programs, a business is protected from lawsuits by injured workers. Eliminating coverage would give illegal aliens the opportunity to sue their employers, Oxfeld said.

Besides, Oxfeld said, “If they’re good enough to work for you, they’re good enough to receive workers’ compensation.”