Termination petition denied, despite fact claimant deported as illegal alien. No medical evidence shows disability ceased. Arguments claimant procured employment by fraud or forfeited right to compensation by not submitting to medical exam rejected.

This case involved a termination petition filed by the employer seeking to terminate the claimant's total disability benefits on the basis that the claimant had obtained his employment by way of a fraud and/or had forfeited his benefits by refusing to submit to a medical exam. The facts show that the claimant had initially worked for the employer as an independent contractor and later became employed in its business of doing mortgage field work. The claimant sustained a compensable work injury to his back on January 20, 2011, when he slipped and fell down a set of steps. The only medical evidence was from the claimant's physician, indicating the low back injury resulted in ongoing total disability. By the time of the hearing, the claimant had been deported to Honduras and testified by way of video conference at the Board hearing. The evidence produced before the Board showed that the claimant had obtained his employment by providing the employer with a false resident alien identification number and a false Social Security number.

The employer made several arguments in support of its request for a termination. The employer contended that under the Immigration Reform Control Act (IRCA) of 1986, the employment of illegal aliens was unlawful and that, since the claimant was an illegal alien, his contract of employment was void and unenforceable. The Board noted that § 2304 of the Act provides that there were two ways by which a person could be found to be an employee: one being a contract of hire and the other being performing services for a valuable consideration. The Board reasoned that in this case it was not disputed that the claimant had performed services for a valuable consideration and that he, therefore, fit the statutory definition of employee. The Board concluded that the Act does not expressly prohibit the receipt of benefits to an employee merely because he is an illegal alien. The Board also noted that the IRCA does not expressly pre-empt the award of workers' compensation benefits.

The employer next argued that the claimant forfeited his right to benefits since, having been deported to Honduras, he could not submit to a defense medical exam at reasonable times and places as required by the Act. The Board rejected that argument, finding that it was not, in fact, reasonable to have this particular claimant evaluated in Delaware since he had been deported. In addition, the Board refused to equate the claimant's deportation to a "refusal" to be examined since, it pointed out, there were physicians in Honduras who could do such an exam and the claimant was, in fact, treating with a physician there.

The employer's final argument was that the claimant forfeited his right to compensation under the statute which provides that being incarcerated after an adjudication of guilt bars the right to compensation benefits. The Board rejected that argument on the basis that, even if the deportation were equated to an adjudication of guilt, the statute also required incarceration. The claimant was living in Honduras, but the Board noted that he was not actually incarcerated. The Board's decision was, therefore, that since there was no medical evidence that the claimant's total disability had ceased and the employer's arguments for denying benefits on either a forfeiture or suspension basis were rejected, the termination petition was denied.

Case Law Alert - 3rd Qtr 2012