Superior Court affirms denial of employer’s termination petition as labor market survey evidence did not establish that employment was available to claimant who was an undocumented worker.

The Industrial Accident Board made three critical findings in reaching its decision denying the employer’s termination petition: (1) the employer met the burden of showing that the claimant was medically employable; (2) the claimant had rebutted that presumption by showing that she was a prima facie displaced worker; and (3) the employer did not present evidence showing that there were regular employment opportunities within the claimant’s capabilities and limitations. On appeal the employer argued that the Board had erred in considering the claimant’s immigration status since it was unrelated to the work injury. The Superior Court concluded that: (1) the claimant was medically employable since both medical experts agreed that she could do one-handed, light-duty work with the right hand and use her injured left hand as an assistance hand; (2) the claimant was a displaced worker on a prima facie basis; and (3) the employer’s evidence consisted of vocational testimony showing that eight potential jobs were located which were said to be suitable for her. Importantly, the vocational consultant was not aware of the claimant’s legal inability to work in the United States and did concede that it would be relevant to employers, but that they had not been asked whether they would hire an undocumented worker. The court concluded, based on the evidence, that the Board had properly found that the employer did not carry its burden to show that work was available to the claimant with her qualifications and limitations since the vocational witness could not testify that there was any work available to the claimant in light of her undocumented worker status.

_{Case Law Alerts, 2^nd Quarter, April 1, 2016}

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