Undocumented worker injured on job seeks aid in court

INDIANAPOLIS — The case of undocumented immigrant permanently injured on the job is raising legal and ethical questions for employers.

• Should the former construction worker be allowed to recover income that some say he cannot legally earn?
• Should any legal settlement be in U.S wages or based on what he could earn in Mexico, his home country?
• What legal recourse do any undocumented migrants have if they're injured while working for companies that hired them despite their immigration status?

Noe Escamilla, 29, slipped and fell in 2010 while he and other workers were lifting a heavy piece of stone at Wabash College in Crawfordsville, Ind. Now he can't lift more than 20 pounds and is suing Shiel Sexton Co., one of the largest construction managers in Indiana, to recover income he can no longer earn.

In the summer, a Montgomery County Superior Court judge decided that Escamilla could not claim lost wages because could not work legally in the United States. Judge Heather Dennison further wrote that he violated federal law by misrepresenting his immigration status to get a job.

Flint immigrants struggle to get help, message on water

Escamilla now is asking the Indiana Court of Appeals to reverse Dennison's ruling.

The appeals court heard arguments on Escamilla's case in early January and has yet to issue a ruling.

Liability questioned

Escamilla, who came to the USA as a teenager, began working for Masonry by Mohler, a Shiel Sexton subcontractor, in 2008. He applied in person and gave Masonry by Mohler a copy of his Mexican driver's license and a Social Security number.

Escamilla, through his lawyer, declined to be interviewed.

Bernie Sanders wants to bring back deported immigrants

The Indianapolis masonry company neither verified his immigration status nor checked his Social Security number, as federal law requires, until after Escamilla was injured two years later, said Tim Devereux, an Indianapolis lawyer representing Escamilla.

By then, Masonry by Mohler learned that the number was issued to someone in California when Escamilla was still a toddler living in Mexico, court records say. Masonry by Mohler did not return a call from The Indianapolis Star.

In 2014, Escamilla applied with the Department of Homeland Security to become a permanent resident, and he can legally live in the U.S. while his application is pending, Devereux said. Escamilla, who's married to an American citizen and whose three children were born here, won't know if his application is approved for another three or four years, according to court records.

His lawsuit was filed against Shiel Sexton — and not Masonry by Mohler — because in Indiana employees generally can't sue their employers for workplace injuries because employers provide workers' compensation insurance for employees' benefit. Employees receiving workers' compensation insurance give up the right to sue their employers for workplace injuries in exchange for that insurance.

So Escamilla cannot sue his direct employer but can sue the general contractor, Shiel Sexton, which is responsible for job-site safety.

Escamilla must prove that Shiel Sexton did something unsafe, said President Chad Staller of the District of Columbia-based Center for Forensic Economic Studies, which provides lawyers with economic analysis and expert testimony in cases involving recovery of damages. The plaintiff's immigration status has to be taken into account in considering damages.

But in Escamilla's case, evidence suggesting long-term tenure in the U.S., such as his application for permanent residency, his marriage to an American citizen and having U.S.-born children, theoretically could work in his favor. Damages based on Mexican currency "might not be appropriate in this matter," Staller said.

"Based upon all the factors in this matter, the earning power of Mr. Escamilla based upon the Mexican peso may not accurately represent Mr. Escamilla's future economic damages," Staller said.

U.S. foreign-born population nears high

Although Shiel Sexton is the defendant on paper, John Andrews, a Shiel Sexton vice president, said Masonry by Mohler is responsible for defending the lawsuit.

"Our name is attached to it, but there's not a lot of influence that we have on any of this," he said. "We don't have any control over the defense or arguments that they present.

Shiel Sexton's lawyer, John Mervilde, of Meils, Thompson, Dietz & Berish, declined to comment.

Echoing Dennison, the Montgomery County judge, Mervilde argued in court records that Shiel Sexton should not be forced to pay for lost income that Escamilla could not legally earn. For him to be able to work, his future employer would be violating federal immigration laws.

If Escamilla were to be paid for lost wages, it should be limited to what he could earn in Mexico, where he's a legal resident, Mervilde argued.

"This dispute is not about Escamilla's character or the character of undocumented immigrants generally," Mervilde wrote. "To the contrary, this dispute is about the law: Undocumented immigrants are not legally entitled to work in the United States under current law."

Devereux, Escamilla's lawyer, said his immigration status should not affect his ability to recover lost earnings. Companies that knowingly hire undocumented immigrants should be held responsible if their employees are injured on the job.

"You're telling these people they're expendable," Devereux said. "They want their labor and their services, but when they get injured … the company suddenly says, 'Well, they're undocumented immigrants.' "

No legal precedent in Indiana

Indiana courts never have faced legal questions similar to the ones posed in Escamilla's case.

But at least 20 courts from other states — including California, New York and Texas — have held that undocumented people can collect U.S. lost wages that result from injuries, said Alexander Limontes of the Indiana Trial Lawyers Association.

Mark Zuckerberg gives $5M to scholarship for undocumented students

"If you look at the courts that have made this ruling, Texas has said that not only can these people collect lost wages, the fact that they were undocumented should never even make it to court in front of the jury," said Limontes, who filed a brief in support of Escamilla.

"These people, they're not going anywhere," Limontes said. "The taxpayers, do they have to take care of them as opposed to the person that hurt them originally?"

The Texas Supreme Court ruled in 2010 that a truck driver's illegal status could not be used as evidence in front of a jury. The California Supreme Court ruled in 2014 that state law protects employees' rights, regardless of their immigration status.

Study: Migrants, even with temp visas, get lower pay

Escamilla is entitled to receive lost earnings under tort law, which allows victims of injuries to be compensated by the negligent party, Limontes said.

"The whole purpose of tort law is … to hold people accountable for their actions and to deter this kind of behavior from occurring again," the lawyer said. "If you set a different standard for undocumented people, it will work completely contrary to that purpose."

Follow Kristine Guerra on Twitter: @kristine_guerra