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Can Undocumented Workers Receive Workers’ Comp Benefits in Nevada?

Being injured at work and suffering from lost wages can be extremely burdensome. Fortunately, certain injured workers in Nevada may be entitled to file a workers’ compensation claim for Permanent Total Disability (PTD) benefits.

These specific benefits are only awarded if an injury is so severe that the injured worker is no longer able to be gainfully employed—in other words, he or she is unable to return to any type of real work due to their injury. When PTD benefits are awarded, the individual is able to receive treatment for their claims and receive monthly compensation benefits for life.

In Nevada, an injured worker, whether he or she is here legally or illegally, are be entitled to certain workers’ compensation benefits. Thanks to a recent ruling in a case involving our client, represented by Attorney Javier Arguello, insurance companies will be required to uphold their obligation to pay benefits to undocumented workers.

Undocumented Workers Previously Denied Benefits

The question of whether injured undocumented workers were eligible for workers’ compensation was brought to the Nevada Supreme Court in Tarango v. State Industrial Insurance System (SIIS). In this case, Angel Tarango, an undocumented worker, was injured after he fell from an eight-foot ladder while putting up drywall.

Tarango was provided with medical and disability benefits related to his injury, however, he was denied the vocational rehabilitation benefits he requested when he was unable to show a valid Immigration and Naturalization Form I-9. He contested the case all the way up to the Nevada Supreme Court.

In 2001, the Court denied Tarango’s claim and found that undocumented workers were not eligible for vocational rehabilitation benefits (such as retraining or school) when given permanent work restrictions. This decision was based on their inability to work in the United States.

As a result of that decision, insurers have typically denied undocumented workers Temporary Total Disability (TTD) benefits when they had temporary light duty work restrictions, since they cannot return to work. In addition, insurers have been using the Tarango decision to deny undocumented workers PTD benefits.

New Ruling Protects the Rights of Undocumented Injured Workers

In the case of our client, Manuel Ibanez, the insurer tried once again to prevent an undocumented injured worker from receiving PTD benefits, relying upon Tarango and their erroneous legal argument that, as an undocumented worker, he was not entitled to these monetary benefits.

Work Injury and Request for PTD Status

On October 16, 2014, Mr. Ibanez sustained multiple severe industrial injuries while working within the course and scope of his employment as a carpenter for High Point Construction. As a result of these injuries, he underwent multiple failed surgeries to his low back, cervical spine, and right shoulder.

On January 11, 2018, Mr. Ibanez’s treating physician released him with light duty restrictions consisting of no lifting over 10 pounds and no bending/twisting at the waist. Due to Mr. Ibanez’s severe industrial injuries, ongoing need for medical treatment, including opiate medication, his lack of education and work experience, he requested the insurer grant him permanent total disability (PTD) status on June 25, 2018.

On July 9, 2018, the Administrator issued a determination denying the claimant’s request for PTD benefits based on the fact he was not documented to work in the United States. As a result, Mr. Ibanez began the appeals process.

Appealing the Denial

On August 21, 2018, Mr. Ibanez was independently examined for a permanent total disability assessment. In his report, the physician opined to a reasonable degree of medical probability that Mr. Ibanez was permanently and totally disabled as a result of his industrial injury.

He based his opinion on the significant impairments Mr. Ibanez had to the low back, cervical spine, and right shoulder as a result of multiple industrial surgeries. The physician who conducted the independent medical examination also noted Mr. Ibanez’s need for opiate medication, including Norco, Celebrex, and Zanaflex, secondary to pain as a result of his multiple surgeries.

The physician further noted that Mr. Ibanez had no significant educational background, only completing the ninth grade, and his employment history was based significantly based in working in heavy duty-related positions, such as the construction field and restaurant work; additionally, he had no trade school or military experience.

Regarding Mr. Ibanez’s current employability, it was opined that it would be very difficult for him to sell his employment services in a competitive market. The physician considered the patient’s pain and limitations in multiple activities of daily life, along with his requirement for opiate medication, would make it nearly impossible to find employment on a sedentary basis.

ARMI v Ibanez in the Nevada Supreme Court

On April 11, 2019, the Appeals Officer issued a decision reversing the Administrator’s July 9, 2018 determination denying the claimant’s request for ongoing PTD benefits. As a result, the insurer appealed to the Nevada Supreme Court.

On December 31, 2020, the Nevada Supreme Court held that undocumented workers are not precluded from receiving monetary disability benefits under Nevada workers’ compensation laws, a major win for undocumented workers in the state.

The Court distinguished their prior decision in Tarango, which essentially ruled that undocumented workers were not eligible to obtain reemployment or vocational training. In that decision, the Court noted that allowing an undocumented worker to skip the priorities that had to be met would afford undocumented workers greater benefits than a similarly situated documented worker, who would have to return to work if a permanent light duty position was offered.

In Ibanez, NRS 616C.435 is the applicable statute and the Appeals Officer found the claimant would fall under the “odd-lot doctrine” as explained in the Nevada Supreme Court case of Nevada Indus. Comm’n v. Hildebrand, 100 Nev. 47 (1984). In Nevada, odd-lot situations provide that permanent total disability must be determined by the insurer in accordance with the facts presented.

In determining whether a worker qualifies for permanent total disability benefits under the odd-lot doctrine, factors in addition to the physical impairment of the worker must be taken into account.

As Professor Larson stated, the odd-lot doctrine permits: [T]otal disability [to] be found in the case of workers who, while not altogether incapacitated for work, are so handicapped that they will not be employable regularly in any way well-known branch of the labor market. The essence of the test is the probable dependability with which the claimant can sell his services in a competitive labor market. 2 A. Larson, the Law of Workmen’s Compensation, sec. 57.51 (1981).

Implications of ARMI v Ibanez

This decision is long overdue and will result in positive, long-lasting implications for undocumented injured workers in Nevada. No longer will they be summarily denied PTD benefits simply because they are undocumented. Now, insurers will have to comply with the law, and their erroneous interpretation of workers’ compensation laws will no longer be applicable to undocumented workers.

As noted by the Court, the “Nevada workers’ compensation statute clearly and unambiguously protects every person in the services of an employer, whether lawfully or unlawfully employed, including aliens.” With the Supreme Court’s ruling in Ibanez, these undocumented injured workers will now at least have a chance to pursue PTD benefits for injuries they sustained while working in Nevada, just like all other employees.

Injured at Work? Turn to Our Team

At Bertoldo, Baker, Carter & Smith, our team proudly represents all injured workers across Las Vegas and the surrounding areas, regardless of their documentation or immigration status. For more information on how we can assist you through your workers’ compensation case, please don’t hesitate to reach out at (702) 505-8115.