Nevada—Permanent Disability Benefits for Undocumented Worker
On November 23, 2020, the Nevada Supreme Court ruled, in Associated Risk Management, Inc. v. Ibanez, that an undocumented worker who sustained severe injuries was entitled to an award of permanent total disability (PTD) regardless of immigration status.
In its opinion, the court rejected the workers compensation third party claims administrator’s argument that the worker’s inability to work was tied to his status as an undocumented worker. The court noted that the appeals officer expressly found that the worker was disabled on the basis of medical reports regarding his injuries. The court also relied on its 2001 decision in Tarango v. State Industrial Insurance System to conclude that the state’s workers compensation laws apply to all injured workers within the state, regardless of immigration status.
The court further found that substantial evidence supported the appeals officer’s decision that the worker was permanently disabled under the “odd-lot doctrine,” which permits a finding of PTD when workers, while not altogether incapacitated for work, are so handicapped that they will not be employed regularly in any well-known branch of the labor market.
Texas—Intentional Tort Exception to Exclusive Remedy
On November 20, 2020, the Supreme Court of Texas, in Berkel & Company Contractors, Inc. v. Lee, again confirmed that the substantial-certainty test used to establish the common-law intentional tort exception to WC exclusive remedy, requires that a defendant intend or know that its actions are substantially certain to result in a particular injury to a particular employee, and not merely be highly likely to increase overall risks to employees in the workplace.
Pointing to its recent decision in Mo-Vac Service Co. v. Escobedo (2020), the court reaffirmed that the narrow common-law exception to exclusive remedy requires a specific intent to injure and rejected the appellate court’s adoption of a new “localized area” test, which expanded the “intent to injure” definition to include knowledge of dangerous conditions that will eventually cause injury if the knowledge is specific to a particular time and class of individuals.
With this ruling, the court held that exclusive remedy barred a lawsuit brought against a co-employer by a worker who suffered injuries as a result of a crane accident, because the injured worker failed to present sufficient evidence that the co-employer knew or believed that its actions would result in the accident that was substantially certain to injure a particular person.
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