Ramroop v. Flexo-Craft Printing, Inc.

In 1997, claimant was interviewed and evaluated by the Board’s Rehabilitation Bureau for vocational purposes. Claimant was eventually referred to the New York State Education Department’s Office of Vocational and Educational Services for Individuals with Disabilities (VESID), but the agency found that he was ineligible for services because he is an undocumented alien who cannot be legally employed in the United States.

In July 2002, more than two years after the schedule award had been fully paid, claimant requested that the case be reopened and restored, and that he receive “additional compensation” pursuant to Workers’ Compensation Law § 15 (3) (v). After a hearing in October 2003, a Workers’ Compensation Law Judge (WCLJ) awarded claimant section 15 (3) (v) benefits in the amount of $200 per week from September 2002 through October 2003 and ordered the Fund to make such payments. The Fund appealed the decision to a Board panel based on VESID’s finding that claimant was ineligible for training for non-work-related reasons. A Board panel rescinded the WCLJ’s decision and ordered further hearings regarding whether claimant’s impairment of earning capacity was due “solely” to his work-related injury, as required by section 15 (3) (v). At a subsequent hearing held in September 2004, the Board’s rehabilitation counselor testified that claimant was ineligible for VESID training due to his undocumented status. The WCLJ reinstated the additional compensation award and the carrier appealed the decision to a Board panel.

In November 2005, the Board panel that originally rescinded the WCLJ’s first decision reversed the decision rendered at the subsequent hearing. The Board panel concluded that claimant did not meet the requirements of section 15 (3) (v) and that Workers’ Compensation Law § 17 should not change this result. Claimant appealed to the Appellate Division, which affirmed. The court held that “the Board quite properly found that because claimant was an undocumented alien, he was ineligible

Claimant and amici seek reversal of the Appellate Division order and argue, among other things, that the decision of the Board, affirmed by the Appellate Division, runs counter to the legislative history of Workers’ Compensation Law § 15 (3) (v) and § 17. We disagree.

Because this appeal involves a question of statutory interpretation, we must discern and give effect to the Legislature’s intent:

“As the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof. ... In construing statutes, it is a well-established rule that resort must be had to the natural signification of the words employed, and if they have a definite meaning, which involves no absurdity or contradiction, there is no room for construction and courts have no right to add to or take away from that meaning” (Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577 , 583 [1998] [citations and internal quotation marks omitted]).

Section 15 (3) (v) (added by L 1970, ch 286, § 1), entitled “Additional compensation for impairment of wage earning capacity in certain permanent partial disabilities,” states, in relevant part:

“[Additional compensation shall be payable for impairment of wage earning capacity for any period after the termination of an award under paragraphs a, b, c, or d[ ] of this subdivision for the loss or loss of use of [50%] or more of a[n arm, leg, hand or foot], provided such impairment of earning capacity shall be due solely thereto. ... As soon as practicable after the injury, the worker shall be required to participate in a board approved rehabilitation program; or shall have demonstrated cooperation with efforts to institute such a board approved

program and shall have been determined by the board not to be a feasible candidate for rehabilitation.” (Emphasis added.)

Contrary to claimant’s argument that the legislative history of section 15 (3) (v) controls, the statute clearly and unambiguously provides that claimant must fulfill two requirements. With this in mind and assuming, without deciding, claimant can establish that the impairment of his wage-earning capacity is due solely to the compensable injury he sustained, we hold that he does not meet the second requirement under the statute. That is, because claimant was ineligible for work in the United States, claimant did not, and could not, participate in a “board approved rehabilitation program.” Moreover, even if we assume that claimant cooperated to the extent he could, his inability to participate was not because rehabilitation was not feasible—the Board never made a feasibility determination—but because no rehabilitation program is available to those who are not legally employable.

This appeal puts into clear focus the tension between the statute’s vocational rehabilitation objective to return an injured worker to the marketplace, and the reemployment of a worker, as in this case, who is not authorized to so participate in the first instance. Section 15 (3) (v)’s legislative history underscores this tension:

“A key feature of the bill [that became section 15 (3) (v)] is the requirement that the worker receiving additional compensation participate in Board approved programs of retraining and rehabilitation. This helps both the worker and the employer since it will tend to reduce the effects of the injury, restore the worker to re-employment and help him achieve his optimum earning capacity” (Governor’s Program Bill Mem, Bill Jacket, L 1970, ch 286 [emphasis added]).

Simply put, it cannot have been the Legislature’s goal to “restore ... to re-employment” a worker who may not be lawfully employed. Reversal of the Appellate Division order would not only promote such restoration, it would effectively place the instant claimant, and others similarly situated, in a more favorable position than claimants who must meet all statutory requirements. This would amount to our directing the Board to put its imprimatur on an “additional compensation” award in contravention of its statutory mandate, a result which the law compels against.

The majority today holds that the claimant’s “inability to participate was not because rehabilitation was not feasible—the Board never made a feasibility determination—but because no rehabilitation program is available to those who are not legally employable” (majority op at 167). The record reveals otherwise. At an October 25, 2005 hearing before the Workers’ Compensation Board, Commissioner Mona Bargnesi asked whether there was a rehabilitation service that did not require the participant to have a green card. Neither Mr. Hilfer (counsel for Mr. Ramroop) nor Mr. Zenkewich (counsel for Flexo-Craft Printing and the State Insurance Fund) knew whether such a program was available. Indeed respondents’ counsel replied:

“He went where they generally send them. They sent him to the VESID program . . .

“Well, I would think that . . . since it has to be a Board approved program that if there was another program that he could have done. I—Personally, I would have hoped that the VESID people could say we can’t handle you because of your status but you should go someplace else if there was another place, so I don’t know” (Oct. 25, 2005 hearing held before State of New York Workers’ Compensation Board, transcript at 14).

Because the question of whether there exists a Workers’ Compensation Board approved rehabilitation program willing to enroll a person with an immigration status impairment has not been answered, I would reverse the order of the Appellate Division and remit for further proceedings to determine the availability of an alternative program.

All workers, whether or not they are authorized to work in this country, are eligible for workers’ compensation benefits as such benefits are available.

“To further the claimant’s ability to establish his [or her] right to benefits, the statute creates a presumption that the injuries are compensable. The statute was enacted for humanitarian purposes, framed, in the words of Chief Judge Cardozo, to insure that injured employees might be saved from becoming one of the derelicts of society, a fragment

of human wreckage. To further that purpose, we have held that the statutory obligation to compensate injuries sustained in the course of employment which are causally related to it does , not depend on the equities of a particular case, nor may it be avoided because of the workers’ fraud or wrongdoing: it is absolute” (Matter of Richardson v Fiedler Roofing, 67 NY2d 246 , 251 [1986] [citations and internal quotation marks omitted]).

Furthermore, I cannot agree with the majority’s conclusion that

“it cannot have been the Legislature’s goal to restore to reemployment a worker who may not be lawfully employed. Reversal of the Appellate Division order would not only promote such restoration, it would effectively place the instant claimant, and others similarly situated, in a more favorable position than claimants who must meet all statutory requirements” (majority op at 167 [ellipsis and internal quotation marks omitted]).

The legislative history of Workers’ Compensation Law § 15 (3) (v) demonstrates that only health-related restrictions on eligibility were contemplated. This intent is articulated in the Governor’s program bill memorandum which notes that compensation is available “if the worker continues to suffer loss of earnings because of the injury” (Governor’s Program Bill Mem, Bill Jacket, L 1970, ch 286, at 2). Nowhere within the legislative history does it state that in order to qualify the worker must be legally authorized to work within the United States. What is stated is that the purpose of the bill is “[t]o provide additional compensation benefits to certain workers suffering impairment of earning capacity because of a job-connected loss of an arm, hand, leg, or foot” (id.).

Section 15 (3) (v) of the Workers’ Compensation Law has two requirements: (1) that the worker suffer an injury involving 50% or more loss, or loss of use of an arm, hand, leg or foot; and (2) that the worker participate in a retraining and rehabilitation program approved by the Workers’ Compensation Board or cooperate with such efforts and be deemed not to be a feasible candidate. Here, claimant has suffered a 75% loss to his right hand. However, this record is devoid as to whether there exists an alternative rehabilitation program approved by the Workers’ Compensation Board that could provide the necessary services

Providing claimant, and others similarly situated, with additional compensation will not effectively place them in a more favorable position than claimants who must meet all statutory requirements because it has yet to be established that VESID is the only rehabilitation program approved by the Workers’ Compensation Board. As stated by Workers’ Compensation Board Commissioner Michael Berns during the October 25, 2005 hearing:

“I have a suspicion . . . that everybody is hanging on the letter of the law here. In the meantime, we have a claimant who may have other alternatives. We don’t know because the State Insurance Fund is not doing anything ... In the meantime, the claimant has not been given any alternatives for service how he could conceivably get back into the workplace” (transcript at 13).

As we stated in Matter of Smith v Tompkins County Courthouse, it is a “fundamental principle that the Workers’ Compensation Law is to be liberally construed to accomplish the economic and humanitarian objects of the act” ( 60 NY2d 939 , 941 [1983]). The purpose of section 15 (3) (v) is to reemploy the worker and maximize the worker’s earning capacity (see Governor’s Program Bill Mem, Bill Jacket, L 1970, ch 286, at 3). For this Court to now hold that a worker’s earning capacity is diminished because of a lack of authorization to work in this country—when the lack of authorization existed preinjury— defeats this legislative purpose.

The majority today forecloses the availability of additional compensation for severely injured workers solely because they may lack permanent residency status or authorization to work in this country, ignoring the history of our Workers’ Compensation Law and this State’s commitment to protect all workers, irrespective of immigration status (see Balbuena v IDR Realty LLC, 6 NY3d 338 , 358-359 [2006]).

Therefore, I would reverse the order of the Appellate Division and remit to the Workers’ Compensation Board for a hearing in order to establish whether there exists such an alternative rehabilitation program.

Order affirmed, with costs.