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.