Nevada Court Affirms PTD Award to Undocumented Worker on Odd-Lot Basis

In an unpublished decision, the Supreme Court of Nevada affirmed an award of permanent total disability benefits to an undocumented worker who sustained severe injuries to his head when a falling two-by-four struck him at a construction site in 2014 [Associated Risk Mgmt. v. Ibanez, 2020 Nev. Unpub. LEXIS 1124 (Nov. 23, 2020)]. Quoting Larson’s Workers’ Compensation Law, § 83.01, the Court stressed that under the “odd-lot doctrine, a finding of PTD was justified when a worker, “while not altogether incapacitated for work, [is] so handicapped that they will not be employed regularly in any well-known branch of the labor market.”

The court noted that here, the appeals officer based his decision on substantial evidence in the record, including professional medical evaluations. Even if the workers’ compensation insurance carrier’s view of the evidence might have been a permissible one, the agency evaluated the evidence differently and came to a different conclusion. That conclusion, said the Court, was entitled to deference.

Undocumented Status

The Court was also not persuaded by the carrier’s contention that the injured worker’s inability to work was tied to his physical disability. It contended instead that his inability to work was mostly tied to his status as an undocumented alien. There were two problems with the carrier’s argument, stressed the Court. First, the hearing officer expressed found that the worker was disabled on the basis of his injuries, not his immigration status. Second, the officer had correctly stated that the worker’s immigration status was irrelevant to his eligibility for PTD benefits.

The Court observed that Nevada’s industrial insurance system covered “every person in the service of an employer … whether lawfully or unlawfully employed,” including “[a]liens” [NRS 616A.105(1)]. Citing Tarango v. State Indus. Ins. Sys., 117 Nev. 444, 448, 25 P.3d 175, 178 (2001), the Court added that the state’s workers’ compensation laws applied to all injured workers within the state, regardless of immigration status [see also Larson, § 66.03].