August 23, 2006

Illegal Immigrants in Arizona: Comp Coverage Hinges on a Comma

Back in 1925, legislators in Arizona wrote the first workers compensation statute for that state. It's safe to say they had no idea that the absence of a single comma would send lawyers scrambling for clarification some 80 years later. The story involves workers comp coverage for illegal immigrants.

"Mario Lopez" hurt his back moving furniture in 2001. He filed a claim for permanent disability benefits, which was denied based upon the lack of medical evidence. He appealed. It turns out that "Lopez" was really Jose Luis Gamez, an illegal immigrant. The court of appeals upheld the lower court's ruling, but in doing so, one of the three judges, Daniel Barker, filed a "special concurring opinion" that went much farther than the original denial. Barker, carefully parsing the original statute, concluded that the law did not include coverage for illegal immigrants.

Here's the original wording of the statute: employees eligible for benefits include "aliens and minors legally or illegally permitted to work for hire." According to Judge Barker, the phrase "legally or illegally permitted to work for hire" refers only to minors. He believes that applying the phrase to "aliens" goes beyond the syntax and meaning of the statute. While not binding, his statements could lead others to deny benefits to undocumented immigrants solely on the basis of their being here illegally. Put a comma after "minors" and the problem goes away. Without the comma, the dependent clause "legally or illegally" might well be construed to apply only to minors.

While the Insider has no desire to serve as grammar police, we think the judge has spent a few too many hours with the Chicago Manual of Style. If this nitpicking were to become public policy, Arizona would face a chaotic and very dangerous situation. Eliminating undocumented workers categorically from the comp system would lead, at a minimum, to the following:
- the only recourse for injured workers without comp coverage would be to sue their employers
- insurers could not include the payroll for undocumented workers in their calculation of premiums
- Arizona employers would be tempted to hire undocumented workers simply to skimp on safety programs and lower the cost of doing business (some already do this anyway)
- Arizona would create a second class workforce, leaving thousands of workers vulnerable to exploitation

Give Me a Comma!
Even though Judge Barker's "special concurrence" is not binding on lower courts, it surely muddies the waters. As a result, the state's leading workers' compensation insurer is asking the Arizona Supreme Court to settle whether illegal immigrants are eligible for comp benefits. The state fund wants the Supreme Court either to erase Barker's concurrence or issue its own ruling on the issue. The fund, along with the state Industrial Commission and an association of lawyers who represent injured workers, all argue that current state law protects illegal immigrants. They point to the fact that a recent bill to deny benefits to illegal immigrants was defeated in the state legislature.

After three quarters of a century, the fate of hundreds, even thousands of workers hangs on a simple comma. Judge Barker's reading of the statute opens the proverbial can of worms, presumably with a comma-shaped opener. Let's hope the Arizona Supreme Court puts the lid back on the can, where it belongs.



Since we are discussing the grammar of the text, surely the statement that benefits apply to aliens covers immigant workers legal or illegal without further clarification. If you place a period after 'aliens', the statement is quite clear. And since the 'and' signifies an addition to the previously stated group, I think the legislature was clearly extending benefits to non-citizens working in Arizona.

I agree with Diane. I don't know what this judge is thinking. The existence, or nonexistence, of the comma makes no difference whatsoever. If the phrase "legally or illegally permitted to work for hire" does not refer back to "aliens" as the judge contends, then "aliens" is effectively unrestricted in any way. i.e. ALL aliens are covered.

I agree with the previous comment. The judge's grammatical argument makes no sense. If he is right, then you have two classes eligible for benefits: one, all aliens, two all minors who are legally or illegally permitted to work. This construction does not imply that there is another, uncovered, class of aliens.


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This page contains a single entry by Jon Coppelman published on August 23, 2006 3:34 PM.

BLS Stats on Dying at Work: Spin Control in the Graveyard was the previous entry in this blog.

Health wonkery redux is the next entry in this blog.

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