No. 03324300 (2003). EMPLOYEE: Guillermo Medellin.

Case Date:December 23, 2003
Massachusetts Workers Compensation 2003. No. 03324300 (2003). EMPLOYEE: Guillermo Medellin COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF INDUSTRIAL ACCIDENTS EMPLOYEE: Guillermo Medellin EMPLOYER: Cashman KPA INSURER: National Union Fire Insurance Co.BOARD NO. 03324300REVIEWING BOARD DECISION (Judges Maze-Rothstein, Carroll and Costigan)APPEARANCES Richard J. Bennett, Esq., for the employee Michael P. McCoy, Esq., for the insurer Thomas F. Reilly, Attorney General, and Constance M. McGrane, Assistant Attorney General, Office of the Attorney General, Commonwealth of Massachusetts, amicus curiae for the employee Amy Sugimori, Esq., National Employment Law Project, et al., amici curiae for the employee Audrey R. Richardson, Esq., Greater Boston Legal Services, amicus curiae for the employee Richard M. Glassman, Esq., Harvard Legal Aid Bureau, amicus curiae for the employee Karl Klare, Esq., amicus curiae for the employee L. Paterson Rae, Esq., Western Massachusetts Legal Services, amicus curiae for the employee Joyce E. Davis, Esq., Brazilian Immigrant Ctr., amicus curiae for the employee Iris Gomez, Esq., Massachusetts Law Reform Institute, amicus curiae for the employee Shelley B. Kroll, Esq., Donald J. Siegel, Esq., and Michael J. Doheny, Esq., Massachusetts AFL-CIO, amicus curiae for the employee Jonathan P. Hiatt, Esq., and Craig Becker, Esq., AFL-CIO, amicus curiae for the employee Michael A. Feinberg, Esq., Arthur G. Zack, Esq. and Jonathan M. Conti, Esq., New England Painting and Glazing Industries DC 35 Joint Trade Board, amicus curiae for the employee Thomas M. Wielgus, Esq., Workers' Compensation Trust Fund, amicus curiae for the insurer Henry E. Bratcher III, Esq., Zurich North America, amicus curiae for the insurer MAZE-ROTHSTEIN, J. After recent United States Supreme Court pronouncements, can undocumented immigrant workers [1] receive Massachusetts workers' compensation benefits? The insurer argues they cannot. It appeals from a decision awarding Guillermo Medellin such benefits. Specifically, the insurer submits that Mr. Medellin cannot receive benefits for his incapacitating work injury because his admitted status as an undocumented immigrant worker bars him from receiving benefits under the recent United States Supreme Court decision of Hoffman Plastic Compounds, Inc. v. National Labor Relations Board, 535 U.S. 137 (2002). It is the insurer's contention that Hoffman overrules the reviewing board decision, Brambila v. Chase-Walton Elastomers, Inc., 11 Mass. Workers' Comp. Rep. 410 (1997), by preempting our law on this point. In Brambila, we concluded that an employee's status as an undocumented worker, unauthorized to be employed in the United States under 8 U.S.C. § 1324a, [2] does not bar him/her from receiving workers' compensation benefits otherwise due. Brambila, supra at 416. For the reasons that follow, we consider Hoffman inapposite, and we decline to overrule Brambila. We therefore affirm the decision. Guillermo Medellin is a fifty-one year old native of Mexico where he trained and worked as an engineer. (Dec. 3.) After arrival to the United States, now nine years ago, he attended two months of school until economic demands required that he instead, pursue full time work as a cleaner and construction laborer. (Dec. 3-4). On August 12, 2000, at work, Mr. Medellin was excavating poles with a jackhammer when the ground crumbled beneath his feet and he dropped, still grasping the jackhammer, into an eight foot deep hole. He felt an immediate onset of pain in his right arm and shoulder, right major hand and right knee. (Dec. 4.) Despite surgeries, the placement and removal of pins and extensive physical therapy, Mr. Medellin's right major upper extremity remains impaired from his shoulder to his hand. (Dec. 4-5.) The employee claimed workers' compensation benefits, which the insurer resisted. During the § 11 hearing on the claim, the employee admitted that, though he had come with a ten year visitor's visa, he was working in the United States illegally under a false social security number. (Tr. 35-36.) The judge awarded the employee continuing G. L. c. 152, § 34, temporary and total incapacity benefits. (Dec. 6.) Following our decision in Brambila, would cause us to disregard the insurer's assertion that the employee's status as an undocumented worker bars his receipt of workers' compensation benefits. The relevant facts of Brambila are like those of the present case: An employee, unauthorized to work in the United States, presented false documents proving eligibility to be employed and was hired. Mr. Brambila's employer had duly requested the proof of eligibility, thereby fulfilling its obligations under 8 U. S. C. § 1324a, and hired the employee without knowledge of his actual immigration status. The employer did not learn that the employee's immigration status was illegal until well after the industrial accident had occurred. Brambila, supra at 411-412. We reasoned that an employee's misrepresentation as to his eligibility to be employed in the United States did not nullify, ab initio, the contract of employment under G. L. c. 152, § 1(4), which defines "employee" as "every person in the service of another under any contract of hire, express or implied, oral or written . . . ." "A contract induced by fraudulent misrepresentations is voidable, not void. [Citation omitted.] The rule applies in the employment context as well." Shaw's Supermarkets, Inc. v. Delgiacco, 410 Mass. 840, 842 (1991). "[U]nless rescinded, 'a voidable contract imposes on the parties the same obligations as if it were not voidable.' " Berenson v. French, 262 Mass. 247, 260-261 (1928), quoting Williston, Contracts, § 15. " 'Voidable' imports an act which may be avoided, rather than an invalid act which may be confirmed. . . ." Rothberg v. Schmiedeskamp, 334 Mass. 172, 176 (1956). As of the occurrence of the industrial accident, the employer had not rescinded the contract of hire. The rights incident to Mr. Brambila's status under the contract of hire were intact. Hence, that unrescinded contract was still enforceable at the time of the injury. One of the rights incident to the employment status was coverage under the Act. See Pierce's Case, 267 Mass. 208, 211-212 (1929)(illegal employment contract of minor at fireworks factory not void ab initio and still enforceable as of death of minor occurring at work; death therefore compensable). Brambila, supra at 413-414. [3] Moreover, we were persuaded that a proximate causal connection between the employee's misrepresentation of his immigration status at the time of being hired, and the work injury that he later suffered was absent. There is no evidence before us that Mr. Brambila's misrepresentation caused his injury. (July 11, 1996, Findings and Order.) The injury "might have happened in the same way whatever the [employee's status] had been. His bodily presence was an essential condition of his injury; but it does not follow that it must have been a cause thereof." Moran v. Dickenson, 204 Mass. 559, 562 (1910). Brambila, supra at 415. Basis for the Hoffman Challenge The insurer in the present case argues that Brambila has been effectively overturned by the Supreme Court's Hoffman decision. Before addressing the merits of that contention, we must briefly respond to the procedural background that gives rise to the argument. The employee rightly points out that, at the § 11 hearing, the insurer did not challenge the employee's claim on the basis of his unauthorized status. However, we do not see this as a waiver under the circumstances of this case. While the insurer certainly could have challenged our Brambila decision without the ammunition that Hoffman arguably supplies, it avers in its appeal that Hoffman has vastly changed the legal landscape for undocumented immigrant employees. Waiver does not necessarily apply where supervening decisions emanating during the direct appeal result in a change in the law, and therefore present new arguments unavailable at the time of hearing. See Rosenblatt v. Baer, 383 U.S. 75, 77, 87-88 (1966)(failure to adduce evidence in trial of point of law redefined in Supreme Court decision rendered while direct appeal pending warranted remand); Pilgrim v. MacGibbon, 313 Mass. 290, 296-298 (1943)(Supreme Judicial Court applied decisional law rendered after trial of matter on review, to reverse a judgement notwithstanding the verdict in accordance with the reformulation of the law that intervened). See generally Attorney General v. Book Named "Naked Lunch," 351 Mass. 298, 306-308 (1966)(Reardon, J., dissenting)(discussion of waiver limitations where there is intervening change in the law while case on appeal). The insurer's failure to challenge Brambila at the hearing, based on the evidence of the employee's illegal immigrant status adduced at hearing, does not operate as a bar in the instant case. Moreover, the reach of Hoffman is arguable given aspects of its reasoning. In Hoffman, the Supreme Court concluded that the National Labor Relations Board's award of backpay to undocumented immigrant workers for violations of the federal labor law it administers "would unduly trench upon explicit statutory prohibitions critical to federal immigration policy, as expressed in IRCA [Immigration Reform and Control Act of 1986]." Hoffman, 535 U.S. at 151. The statutory prohibitions adverted to are those governing the employment relationship between the...

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