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Marquez v. Pierce Painting, Inc.

Supreme Court of Idaho

August 3, 2018

ELFEGO MARQUEZ, Claimant-Respondent,
v.
PIERCE PAINTING, INC., Employer, and STATE INSURANCE FUND, Surety, Defendants-Appellants.

          Appeal from the Industrial Commission of the State of Idaho.

         The order of the Commission is reversed and this case is remanded for further proceedings consistent with this Opinion.

          Cantrill Skinner Lewis Casey & Sorensen, LLP, Boise, for appellants. Clinton O. Casey argued.

          Racine Olson Nye & Budge, Chartered, Pocatello, and Middleton Law, PLLC, Middleton, for respondent. James C. Arnold argued.

          BEVAN, Justice.

         Elfego Marquez ("Marquez") sustained an impairment from an industrial accident while employed at Pierce Painting, Inc. ("Pierce Painting"). Marquez subsequently filed a workers' compensation complaint. Pierce Painting through its surety, the State Insurance Fund ("SIF"), paid Marquez's medical bills, total temporary disability benefits, and permanent partial impairment benefits. SIF did not pay Marquez's permanent disability benefits, claiming that Marquez was not eligible for permanent disability due to his status as an undocumented immigrant. The Industrial Commission (the "Commission") disagreed and ordered that Marquez was entitled to pursue a claim for permanent disability without reference to his status as an undocumented immigrant. Pierce Painting and SIF appeal the order of the Commission. We reverse.

         I. FACTS AND PROCEDURE

         Marquez was born in 1970 and is a citizen of Mexico. He received a university degree in Mexico where he became a teacher and taught first and third year elementary school for seven years. In approximately 2000, Marquez illegally immigrated from Mexico to the United States. After entering the United States, Marquez went to southern California, where he purchased a social security card and used it to obtain employment washing dishes at a restaurant. After working in California for approximately seven months, Marquez moved to Emmett, Idaho and soon after began working at Pierce Painting. Marquez's primary job at Pierce Painting was to prepare buildings to be painted. He was able to work at Pierce Painting by providing the social security card he purchased in California. Pierce Painting knew Marquez was an undocumented immigrant and that his social security card was not legally issued to him. Not long after beginning at Pierce Painting, a supervisor received a notice of garnishment associated with the social security number used by Marquez. Evidently, the individual to whom the social security number had been legally issued had an outstanding child support delinquency. The supervisor instructed Marquez to obtain a different social security card. Marquez complied by illegally obtaining a different social security card.

         On May 20, 2010, Marquez sustained an impairment from an industrial accident while preparing a building to be painted. Marquez was standing on two five gallon buckets stacked on top of each other to reach an area above a tall doorway when he fell onto a concrete floor fracturing his right wrist and injuring his right arm and shoulder. His right wrist was put into a cast and he eventually underwent multiple right shoulder surgeries performed by Dr. Hassinger. Dr. Hassinger rated Marquez's right shoulder impairment at 5% of the whole person. He recommended permanent restrictions on overhead activities and that Marquez not return to his position at Pierce Painting.

         In July of 2010, Marquez was referred to the Industrial Commission Rehabilitation Division ("ICRD") by SIF. ICRD consultant Ken Halcomb ("Halcomb") was assigned to Marquez's case. ICRD's primary objective was to preserve Marquez's time-of-injury job and to return him to that job following his recovery. This required Halcomb to meet with an agent of Pierce Painting, and then with Marquez. Halcomb interviewed Marquez about his education, past work history, and transferable job skills. Notably, the interview did not include questions about Marquez's immigration status. When it became evident that Marquez would not be able to return to his time-of-injury job, Halcomb assisted Marquez in identifying other potential employment opportunities consistent with his restrictions and within his geographic area. Ultimately Halcomb closed Marquez's file without placing him with another employer. Halcomb never learned that Marquez was an undocumented immigrant. Marquez was then referred to the Idaho Department of Labor for additional placement services.

         Marquez received substantial benefits under the Workers' Compensation Act for his injuries. SIF paid $87, 526.64 for medical bills, $30, 985.87 for total temporary disability benefits, and $8, 487.60 for permanent partial impairment benefits. Marquez then sought permanent disability benefits in excess of his impairment because his post-accident medical restrictions excluded him from a significant portion of the undocumented immigrant labor market in Idaho. SIF refused to pay Marquez any permanent disability benefits because of his status as an undocumented immigrant.

         On April 14, 2015, Marquez filed a workers' compensation complaint against Pierce Painting and SIF ("the appellants") seeking permanent disability benefits in excess of his impairment. On May 1, 2015, Marquez filed an amended workers' compensation complaint. The appellants filed answers to both Marquez's original and amended complaints denying that Marquez was entitled to any permanent disability benefits. On July 28, 2016, the parties stipulated to the following:

1. Marquez is not legally in the United States.
2. Marquez had no legal access to the Idaho or United States labor market.
3. Marquez sustained an industrial injury on May 20, 2010.
4. Marquez injured his right wrist and right shoulder in the industrial ...

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