What happens when a migrant worker (documented or otherwise) is hurt on the job? Our expert guests share tips for working with immigrants injured on the job.
Workers Comp Matters
Javier C. Grajeda is an attorney and Certified Workers’ Compensation Specialist under the Arizona Board of Legal...
Robert E. Wisniewski is a Certified Specialist in Workers’ Compensation law with the Arizona State Bar. He...
Alan S. Pierce has served as chairperson of the American Bar Association Worker’s Compensation Section and the...
Judson L. Pierce is a graduate of Vassar College and Suffolk University Law School where he received...
It doesn’t matter what country you’re from or if you’re in the U.S. documented or not. Workplace injuries don’t care about immigration status or language abilities. Everyone hurt on the job deserves representation. Arizona-based workers’ rights attorneys Robert Wisniewski and Javier Grajeda share their vast experiences representing immigrant workers.
Communication is vital, and those with limited English proficiency often need help. Wisniewski shares tips on helping foreign workers communicate the extent of their injuries. American demographics are changing, but our system of protections is for everyone. A competent, certified interpreter is one key.
Undocumented workers, and even documented immigrants, may not know they have rights or may be afraid to speak up. Some may not have valid tax ID information or may work under an assumed name. Others may have left the country or been deported after an accident.
What are cultural tells? How do other cultures react in a courtroom? How do legal professionals vet interpreters? How can you ask simple, direct questions that may uncover information a case hinges on? These and other tips, in this episode of Workers’ Comp Matters.
Special thanks to our sponsor PInow.com, Posh Virtual Receptionists, and MerusCase.
Intro: Before we begin today’s episode, we would like to thank our sponsors Posh Virtual Receptionists and MerusCase.
Workers Comp Matters, the podcast, dedicated to the laws, the landmark cases, and the people that make up the diverse world of workers’ compensation. Here are your hosts, Jud and Alan Pierce.
Alan S. Pierce: Hello, again, this is Alan Pierce and Judson Pierce on Workers Comp Matters here on the Legal Talk Network bringing you another show dealing with issues surrounding and representing injured workers in the setting of industrial accidents and workers’ compensation claims. Today’s show is going to feature two guests, and we’re going to talk about representing immigrant labor force or whether they’re documented or undocumented and the particular issues that are endemic to representing this segment of our very necessary and growing workforce and economy in the United States. We are very pleased to have as our guest for the first half of the episode Attorney Robert or Bob Wisniewski from the Law Offices of Robert Wisniewski in Phoenix, Arizona. And following Bob, we will have one of his associates, Javier Grajeda, also talking about the subject in a little more detail. Bob is going to focus on interpreters or others that seek to aid the injured worker and giving necessary testimony or even communicating with their lawyers about their injuries.
Judson L. Pierce: We are delighted to have with us as a guest, Robert Wisniewski. Robert is the principal and attorney practitioner for several years serving injured workers. They not only do state employees, but they handle the comp claims of first responders, professional athletes. No matter who you are, they will always provide quality representation throughout Arizona. Their offices are in Phoenix, Kingman, Payson and Yuma. Mr. Wisniewski himself has successfully litigated thousands of workers’ compensation hearings before the industrial commission of Arizona and no other claimant’s attorney in Arizona has this much experience. So, we’re delighted to have you, Bob, on as our guest today. Welcome.
Robert E. Wisniewski: Thank you. Thank you, Jud, and thank you, Alan. I’m happy to be here with the Legal Talk Network and talk about this subject in workers’ compensation. What we’re really going to talk about is not necessarily the use of the interpreter, but it’s to assist in communicating as you just mentioned. It’s no different than if you have an English-speaking individual and you have to make sure that you’re going to represent that person with competency and integrity, and they’re going to understand what their story is that they’re attempting to tell the administrative law judge. It’s a little bit more difficult when we encounter people that are injured from other cultures. And as the country becomes more diverse, these folks that I’m going to term limited English proficiency. So, that is the individual whether they’re documented/undocumented. I would say maybe 30 years ago here in Phoenix, we probably did not represent a single Spanish-speaking individual 30, 35 years ago.
As our economy has boom here in Arizona, we represent I would say more than half of our practice is Spanish-speaking individuals. So, we have to be conscious of making sure that they understand, first of all, that they’re going to go to court. And sometimes, we have people that just don’t even show up on time, and we have to be careful of that. And then, we get to the interpreter. So now, you’re in the courtroom and you have an individual that doesn’t speak the language correctly or confidently and may not have a great deal of formal education, and I think that goes across the spectrum of whether they speak English and now we’re seeing much more Arabic and other languages. We’ve represented some people from Liberia when they were dealing with lots of dialects. So, we have to focus now on what the culture is telling us the individual.
We always have the interpreter. The court has to have an interpreter because that’s the only way that folks are going to have their rights protected. So, at the beginning of a hearing before the judge comes out, what I like to do is have the interpreter — we’re acquainted with many of them — have a little conversation with my client just about where they’re from, what part of the country so that they understand whether or not there’s a unusual dialect because some words just don’t translate the same. You know, there’s a Spanish word for truck and there’s ‘el truck’. So, we have the slang word for truck, too. So, we’re always trying to make sure that the people who have limited English proficiency are comfortable. When we visit them here in the office and prepare them, —
We prepare them always with a competent, professional interpreter if we don’t speak that language. My colleague, Mr. Grajeda that will speak a little bit later and is totally fluent in Spanish. So, he doesn’t need the interpreter. He is able to converse with the clients on their own. So, when we’re trying to get a point across, we have to make sure that the person may be looking down. They may be looking away and that doesn’t mean that they’re hiding something that they’re not telling the truth. But they’re trying to perhaps respect the fact that there’s a lawyer in the room and there’s a judge, and in their culture that may be a sign of humility and respect, and we’re trying to have the individual maybe perk up a little bit and look at the judge. We always say look at the judge, smile at the judge. The interpreter is useful in helping. What I try to do when we are using interpreters is always speak in the first person, and we sometimes can tell an interpreter is not a qualified interpreter when you ask them the question of the worker, “What is your name?” Then, I’ve had the interpreter give me her name. And then, it went downhill after that. We recognize very shortly that it wasn’t an interpreter. She just could translate the language. So, we had to stop that and get a qualified interpreter.
But when we’re reading, asking for information, we try to break the question up into pieces so that it gets translated in pieces. Lawyers have a tendency to come up with large and long questions that may not be a familiar language. But if we can break it up into little pieces like, okay, what happened next? And let the person say that. Then, the interpreter can deal with a simple question and then wait for the interpreted response and then proceed. So, it is a little bit like batting a ball over a ping pong or tennis net. There are times when we’ll see the interpreter and the person with limited English proficiency maybe have like a sidebar talk. That means that they’re not getting it. So, we have to kind of stop the preceding of that time and ask them, “Are you understanding the word?” And some words have different meanings. If the word in Spanish for a belt and the word for your waist are the same word. So, it can be the same word. So, we have people who thinks that they’re interpreting and they’re saying, “Well, he’s saying they got hurt at his belt.” And we’re saying, “No, he really got hurt on his waist area.” So, we have to often go back to the interpreter and make sure that they understand what that person is saying.
One of the other problems we have is when we have a longer question but a short answer. You know, the lawyer asked the question. The interpreter asks maybe a question with two or three, four, five phrases and we get a single yes or no. So, we’re not sure then if that person really is understanding what’s going on. That’s the one I think when we have those short answers to a large question. We try to break it up again. You may go back again. So, the hearings are generally longer with the interpreters. If it’s virtual and here in Arizona, we have been virtual for almost 99% of our industrial hearings for the last two years. I haven’t set foot in the building in two years and that’s statewide. We used to have the judges ride circuit and go out and have hearings all across the state. But now because of the technology, it’s all done by Zoom or Google platform.
Alan S. Pierce: Bob, you know, you used the word in your answers about your client telling a story and those of us who do this for a living and have done it, we realized that we are storytellers or even more to the point we are people that will assist our clients to tell their story and that is really how to best communicate to the fact-finding judge who is he or she knows about the claim is what’s on paper. And when they finally see the client in person on the witness stand, they have this limited time to tell their story. As you bring up two points that I wanted you to expand upon, what is — it isn’t simply the hearing where the client testifies with the added obstacle of being communicating in a different language. But the medical records which serve as the foundation of the case, oftentimes are created by personnel who may not be interpreting or even knowing what the client is telling them. So, we have that issue. And the second issue I’d like you to touch on before Jud ask a question is, okay, we can prepare our clients how to answer the questions.
But when you turn the case over to the defense attorney for the insurance company, he or she is going to ask the questions and they want. And when you have a client who is, first of all, not proficient in English and is nervous to begin with, and now, it’s being faced with leading questions from an unfriendly source, that added obstacle of having a go through third party interpreter has to be extraordinarily difficult. So perhaps, you can touch on both of those issues.
Robert E. Wisniewski: Often, when there’s someone leading them, they’re very good at answering because they think, okay, if I answer, I get out of here. I don’t have to sit here and ask this other lawyer to keep asking me questions. Often, I find that sometimes I have to prepare them in advance and say, “Now, they’re going to ask you some questions and they’re going to ask you questions about this and that and you have to be prepared to maybe give a little longer answer than he would like you to pin down to a yes or no or do you didn’t tell anybody that you got hurt right away.” And he might say, “Well, no, I didn’t tell them right away, but I showed them that I was hurt.” I had one worker and, unfortunately, he was an English-speaking. So, I thought he spoke English. I asked him, “Did you tell your boss that you got hurt?” And he said, “I cogitated it to him.” And I said, “Well, do you know what the word cogitate means?” And he said, “No.” And I said, “Why don’t you find the need to work it in here today?” And then, I got to go back and unravel it and it’s even harder with the language after the defense is cross-examining because I think as Alan pointed out, the cross examiner is going to lead and try to get him to a specific point and some admissions that will hurt them. Then, I have to come back and redirect.
Alan S. Pierce: Yeah. And I think that a client wishes too will follow those leading questions because they want to give an answer that’s going to satisfy the question, and they don’t appreciate that the interest of that questioner is not the interest that they want to portray and to be agreeable. Leading questions can be extremely effective with a witness who hears those questions from an interpreter.
Robert E. Wisniewski: You’re absolutely correct. I often say to him I’m working too hard to get the information for you to tell your story and you’re agreeing to everything that the defense is going to say, that’s not going to help you. So, listen to the question and then try to answer the question that he’s asking you, but maybe figure out where he’s going, which that’s a nuance. That’s really difficult in different cultures.
Judson L. Pierce: Do you find yourself having to rely on friends or family from time to time without the certified interpreter available?
Robert E. Wisniewski: We do rarely. I mean, in the office, perhaps we do that. But I think in the court, I mean, I fairly conversing in Spanish, but I technically I would not feel comfortable if I had to help present the case in terms of being the interpreter. So, a lot of times, the family is probably biased and maybe not. They all have their own agenda and their agenda may not be the agenda that we’re trying to portray through the interpreter. We are helpful here because we have lots of good interpreters and they’re required to be Court certified. And one thing that you’re pointing out, Jud, is that the nuances don’t come through. So sometimes, we get an interpreter that’s really good with inflection and can puts a little emphasis back because the translated word doesn’t reflect the emotion of the individual. The interpreter will put in an inflection on it and there are several that I love to see when they’re there because, you know, it’s almost going to be like watching a play because they are very good in, not only interpreting but a gesture and an inflection. So, we have to be careful about who is the interpreter of the league for the —
And, of course, I think now as we get into the other languages that are not as common such as Spanish is relatively common here. But the other languages we run into real problems with the family being interpreter or not having a certified interpreter in that dialect. The example I gave, one presentation was we had a fellow who was from Liberia and he had very limited English to start out with and very limited vocabulary. He hurt his shoulder working in a slaughterhouse. But when he would point to his shoulder, he would say, “I hurt my hand.” And we realized he did not know the word for shoulder. But when he was pointing with his hand, he was really trying to say to us, I hurt this part of my body. So, we had to work with him. It took — I think we had the deposition scheduled and rescheduled four, five times before we could understand. We made him understand that he has to tell us that body part as well as show it.
Judson L. Pierce: You mentioned a few times, —
The amount of work and the hours more than English-speaking worker’s case might take. Can you petition the court for your enhanced fees or are they just statutory? You get the statutory fee? How does it work in terms of paying the interpreters, or do you have to come up with that at your law offices expense and what happens?
Robert E. Wisniewski: Great question. In Arizona, the court provides the interpreter for the hearings at the industry’s expense. And we don’t take a lot of pre-hearing depositions. We take a lot of testimony. We have an initial hearing where the applicant will testify and that’s predominantly where we’ll see the interpreter. We then may have another hearing weeks later where lay witnesses might come in and portray the scene of what happened. Many times, the judge will ask, “Well, I need an interpreter for those lay witnesses and, well, I need an interpreter for your client to hear and get translated the testimony of the lay witnesses.” And, of course, we’ll say, “Yes, we need him there.” Then lastly, we take hearing. We take testimony of medical witnesses by Zoom, by live testimony now. So, we have the applicant’s doctor who’s relating the condition testified first. And then, at some time later, we have the defense doctor testified. So, we have four different hearings. But our fees are all set by statute. They are 25% of benefits.
Judson L. Pierce: And before we go to break, what about the all-important IME, the so-called Independent Medical Exam, which is part of every case generally where your client shows up at the doctor retained by the insurer? Are there interpreters — do you provide it? Does the insurer required to provide it? What happens there?
Robert E. Wisniewski: At least independent exams withdraw, but not so independent. The carrier, that’s or the self-insured that is mandating the examination has to provide the interpreter. We are very careful in preparing our client ahead of time for the examination that we asked them to be cognizant of what’s of their injury. Don’t have be global, not every part of your body. And unfortunately, in some cultures, you don’t get to see a doctor very often. So, when you’re — culturally, when you see the doctor and you wait all day in the waiting room in Mexico, typically, you want to tell the doctor everything that bothers you. And, of course, that hurts in the exam because you have a global complaint and it’s been a shoulder case and now your knee hurts. And these doctors, like the defense lawyers are going to lead the person and say, “Oh, does that go up your left leg and across your pelvis and then the pain goes all the way down to your right leg?” And they’re going to have it translated adequately. But the person is going to say, “Yes, yes, yes.” So, I think in those cases, it’s almost like a hearing. You have to prepare them ahead of time.
Judson L. Pierce: Bob, I want to thank you for all of that helpful information. We are going to take a brief break. When we come back, we will have your associate, Javier Grajeda, and explore a little further the particular challenges and strategies presenting your client’s story until somebody is going to make a decision that affects your client and his family’s welfare and financial future. So, thank you for all the work you’re doing. Thank you for helping us understand.
Robert E. Wisniewski: Thank you for the opportunity to be here today and explain some things that might help folks in their workers’ compensation matters. Thank you, Jud. Thank you, Alan.
Alan S. Pierce: And where can we have folks reached you if they need to contact you?
Robert E. Wisniewski: We’re (602) 234-3700 in Phoenix, Arizona.
Judson L. Pierce: All right, after a brief break, we will be right back with the second half of Workers Comp Matters.
Female: As a lawyer, ever wish you could be in two places at once? You could take a call when you’re in court, capture a lead during a meeting. That’s where Posh comes in. We’re live virtual receptionist who answer and transfer your calls, so you never miss an opportunity, and the Posh app lets you control when your receptionist steps in. So, if you can’t answer, Posh can. And if you’ve got it, Posh is just a tap away. With Posh, you can save as much as 40% off your current service provider’s rates. Start your free trial today at posh.com.
Judson L. Pierce: As a worker’s comp attorney, you need a law practice management solution that works as hard as you do. From document creation to email tracking to custom billing options, MerusCase is tailor-made to automate your daily tasks so you can focus on what matters most, your clients. To learn more about how MerusCase can increase your firm’s efficiency, visit MerusCase.com. That’s meruscase.com.
Welcome back, everyone. We are pleased to have our next guest with us, Javier Grajeda. Welcome Javier to our program. Just a brief background on you. You are a graduate of U Cal, UC Berkeley and also a graduate of the Sandra Day O’Connor Law School at the University of Arizona.
And you are licensed in your state to represent injured workers, and you’ve been doing so for about 12 years down, correct?
Javier C. Grajeda: That is correct. Time flies. And thank you very much for having me today.
Judson L. Pierce: It’s our pleasure. We were just discussing with your colleague, Bob Wisniewski, his experiences with interpreters in workers’ comp cases, and we’d like to get into your experiences in representing immigrants who’ve been hurt on the job and undocumented workers. Just briefly, can you describe for us how you arrived in this course of study and practice of law?
Javier C. Grajeda: Growing up, my dad had a landscaping business and he worked for a lot of individuals that were lawyers. And after I graduated from UC Berkeley, one of his clients who was a work comp lawyer in California, he asked me to come work for him as a clerk, as a paralegal. So, that was my first, you know, dip in the pond in workers’ compensation. And when I went to law school, I actually wanted to practice employment law, represent individuals, not companies. And during my first summer of law school, I applied to law firms all over the City of Phoenix and a workers’ compensation firm hired me on, and they kept letting me come back. So, I learned a lot once I finished law school, and then they offered me a position. So, I had the opportunity to learn from about 10 different lawyers. So, it was a really good experience and that’s what I became good at, I suppose. So, here I am.
Judson L. Pierce: Yeah. It’s a great experience in terms of our practice here. I know, Alan and myself, we’ve been doing this for a while and representing individuals and their stories are also very different. In your experience, what has been the common element in terms of representing undocumented workers in Arizona? What are the trials and tribulations that you’ve experienced doing that?
Javier C. Grajeda: I think the biggest challenge right off the bat is these undocumented workers do not believe that they have any rights and that’s not the case. Here in Arizona, undocumented workers are considered employees for the purposes of workers’ compensation benefits. So, that’s one big hurdle that we need to get past and that just has such an impact on an individual’s claim because, as you and Alan know, time is of the essence in these claims, whether it’s reporting, whether it’s getting treatment, and these individuals just don’t know any better and sometimes that’s a cultural issue. I’m a Mexican background. A lot of the individuals that I represent that are undocumented or immigrants are of Latin American descent. And so, in our community, we rely upon many of the people that we know and their experiences. So, it’s hard for an attorney to really break through those barriers of the community and have a client listen to us.
Judson L. Pierce: You mentioned Javier that there is unawareness of their rights. What about the fear factor, their immigration status and the fear bringing a claim that would either involve retribution, retaliation or, at worst, detention, deportment, et cetera?
Javier C. Grajeda: It’s a very credible fear that these workers have once they’re injured, and you need to remember that a lot of immigrants in our country are not that high-skilled immigrants, and they are of lower education, lower skilled. And so, when they get hurt, they have a decision to make. Do I report this to my employer and risk being fired, risk being called on by the authorities, the immigration authorities, or do I keep working because I need to sustain my family, provide for them? And in many cases, they’re the sole breadwinner. And, you know, these are the same challenges that workers who are documented or who are born here in the United States face, but if there’s just this other level of fear that really prevents people from going forward. And it’s unfortunate, but when we do consult with someone and when I consult with someone, I really do have to counsel them to say, “Look, this is in your best interest to go forward to. My job is to reassure you and to get you the benefits that we think that you’re entitled to.”
Alan S. Pierce: Yeah. It’s troubling because in Massachusetts, there’s obviously the statute of limitations just a little bit liberal. I think it’s four years here in Mass. It’s one year in Arizona, right, to bring a claim or announce that you are going to bring a claim, correct?
Javier C. Grajeda: Correct. It’s a year from when you knew or should have known that you had an injury that was a result of your work activities and that has to be filed with the Industrial Commission of Arizona. Unfortunately, many of my immigrant workers and non-immigrant workers, —
They feel that by reporting it to their employer that they’ve done what they needed to do. And sometimes, unfortunately, I’ve seen them missed the statute after a year because they didn’t take the proper administrative step to file their claim.
Judson L. Pierce: So, the employer wouldn’t then take it and report it themselves that it’s really on the employee?
Javier C. Grajeda: It’s really on the employee. The employer will report it to their insurance carrier. And oftentimes, when than individual does go to seek medical care, the medical provider can also file the claim for them. So sometimes, some people look out that way.
Judson L. Pierce: Yeah, that’s good.
Javier C. Grajeda: Because whoever they’re presented to knows that administrative process. And so, but that’s always one of the things that I look for immediately when I’m representing someone that’s a Spanish-speaking or an immigrant is have they missed that deadline. Let’s find out right away. It’s just so important.
Alan S. Pierce: Now, I know some of the problems we’ve encountered representing workers with questionable immigration status, they may be some kind of gray area. There are some undocumented workers who nevertheless have a federal ID number and, in fact, do pay taxes or others that are much deeper under the radar. And those particular cases, maybe you could comment on simple things that we may not necessarily think of like, their actual name, their actual Social Security number or identification number for purposes of obtaining medical records and other things that you might need to prepare a case that might have an entirely different name or fictitious Social Security number, even date of birth to identify these folks. Some of them I think are really in the ether in terms of being able to establish who they are and how they have obtained their medical treatment.
Javier C. Grajeda: That’s a really great observation and it’s such a good question that it has multiple layers to it. So, we have to remember that there are individuals that come here lawfully to the United States, whether it be on a Visa, a visitor’s visa, a work visa. And for some reason or other, they overstay that. And now, they are out of status so to speak. And that doesn’t mean that they — a lot of people like to use the term illegal. You know, then they picture someone crossing the border without authorization. That’s really just not the case for everyone. Okay? And in my experience with undocumented workers, they’ve been told to get a federal identification number for tax purposes because they want to do the right thing. They want to pay their taxes. And some employers do take that as a method of taking out payroll taxes and Social Security taxes now. As you know, undocumented immigrants are not entitled to Social Security benefits. So, they’re really contributing to a system that they’re not part of, which is really unfortunate even though they’re doing the right thing so to speak in their minds. It’s really helpful for us when they do have a federal tax ID number because it allows us to find the information that we need to calculate the appropriate benefits they’re entitled to under workers’ compensation.
Now, the biggest issue that you brought up I think in that question was the identity of the person. Most people do use the identity of someone else and that’s problematic as an attorney for a couple of reasons. One, I’ve always felt that you start off on the wrong foot with either the claims adjuster or an administrative law judge because the person has already told a non-truth about themselves, right? They aren’t Marco Jimenez. They are Juan Garcia and that always has made me uncomfortable. But in my practice, I always use the person’s actual name. And then, do an also known as and then their working name because if we do have a litigated case, people at the job know them by the work name, not the actual name. So, it does create some problems within the claims processing before a judge and just generally, but most importantly for us. When we do request medical records, you’re right. It might be under the wrong name with the wrong date of birth and it just complicates things for us. And again, that’s another thing that people do because they’re scared, right? They go to the hospital and they may not use their real name for fear of some type of retribution.
Alan S. Pierce: Now, taking this one step further and perhaps you could share with us whether you’ve had these experiences, Arizona being a border state and a lot if not the vast majority of your clients have fit into this category from Mexico, what happens when after the injury, they go back to Mexico, either for treatment, recuperation or just move back there. How do you prove their case with them being out of the country, the availability to do this now electronically over a medium such as Zoom or they say just out of luck because they can’t come back here?
Javier C. Grajeda: That’s a really good question. So, let me give you two examples. The first example, —
I had an individual who was working here. They got hurt. They were doing their treatment, but they lived in a border City here in Arizona, and they were able to go back and forth between Mexico and Arizona. How? I don’t know. I leave that to them. But when the pandemic began, he couldn’t come across because of whatever rules we had, and he was able to do his treatment via Zoom with the doctors and that helped. But it clearly wasn’t the ideal situation because the doctors couldn’t really evaluate him properly. We were able to reach a settlement in that case because he just said, “You know, I can’t go back. I’m done. I’ll figure it out here in Arizona.” I had a colleague of mine who represented someone that was deported in the middle of the claim. It was a fairly straightforward injury, and the carrier wanted to bring that individual back for an Independent Medical Examination. Obviously, the person could not come back because they were undocumented and didn’t have the ability to do so since they had already been deported. And so, there was an issue involving, well, what do you do now? Do you force the carrier to send the doctor to Mexico to do an evaluation? Do you get an evaluation from a Mexico doctor that is familiar with workers’ compensation? What do you do? So, it creates challenges not only for the injured worker, but also for the carrier who wants to try to do the right thing and move the claim along.
Judson L. Pierce: Basically, this type of law is rife with conundrums really, right, between the states being allowed to create their own state workers’ compensation systems and their federal government and what its limitations are. What types of back and forth have you had with that in your practice between the federal law and state laws?
Javier C. Grajeda: I had one interesting situation where I had a gentleman who was here on a work visa got hurt and he needed to continue to get his treatment before the Visa expired. Obviously, I wanted him to continue to treat so that he could try to get better and when he would have to leave, he’d be in a healthy position to leave. But at that point, I needed to get the guidance of an immigration attorney, and I think as a workers’ compensation practitioner here in a border state, that’s something that I need to have available before some type of Visa expires. And that individual who helped me within that claim was able to get an extension of the Visa because there was a legitimate reason, the continuation of medical care, and they had to prove and show that they weren’t going to be award on the United States and we had to explain how this individual is going to get treatment and benefits. So, it comes up a lot. But it’s really incumbent on my clients to tell me because if I don’t know that they’re having some kind of issue, I can’t really help them. And I always try to ask but, as you know, unfortunately, sometimes clients don’t share everything with us.
Alan S. Pierce: Another question that I have because it has come up from time to time is, as you know, one of the benefits of workers’ comp other than wage replacement and medical is vocational retraining or Vocational Rehabilitation. That is obviously a goal to get the person with a permanent impairment able to return to work in another type of job notwithstanding that impairment where the underlying worker being undocumented is not legally allowed to work in the United States. Do the insurers provide vocational rehab? If so, what do they provide and how do they get around the proscription against employment and try to retrain somebody to do a job that they could not do in this country if they were retrained?
Javier C. Grajeda: Here in Arizona, the carriers don’t provide Vocational Rehabilitation. It’s through a Rehabilitation Unit at our Industrial Commission of Arizona and with individuals that are documented and have the ability to work in Arizona. I’ve had successful cases where individuals have become — they finished their GAD. They’ve gotten a computer science degree. They’ve returned to be x-ray technicians. Unfortunately, for my non-English-speaking undocumented workers, it’s usually limited to, well, let’s teach you English so that you can at least be — so that you can have that skill. And I think that by limiting that training to just English, it’s an acceptance of the reality, right? So, if you can go — if you learn English, you can go out and find a job somewhere doing something, whether or not you are able to legally work in the United States. I think that many immigrants are very resilient and resourceful individuals.
And I think many of them do go out and find something through word of mouth of a friend or a family member. But it’s unfortunate that the Vocational Rehabilitation program here in Arizona isn’t more robust because I think it really leaves these injured workers in a bad place, especially if the goal of workers’ compensation is to get people back to work and if they’re able to and to be productive members of society and just because they’re undocumented or don’t have a number to work with doesn’t mean that they still can’t be productive members in our society. I was looking at some information from the Center of Immigration Studies and there are a nonpartisan group that does immigration research.
As of 2021 in November, there were 46 million immigrant individuals in the United States. And as of January of this year, there were 11 million undocumented individuals here in the United States and that’s an estimate. But that’s a lot of people, and it’s a lot of people that are trying to do the right thing in most cases by working when they get hurt. And so, even if they are hurt, I think they, you know, they still have value to us and to our economy and to our communities. And so, it would be great if there would be a way to expand that vocational training for them.
Alan S. Pierce: Couldn’t agree more. Jud?
Judson L. Pierce: Yeah. I just wanted to thank you before we close and just for your personal commitment in representing injured workers, the way you do and the quality, it shines through. You know, I’ve gotten to know you a little bit through your work with Workers’ Injury Law and advocacy group. And I know you’re a member of the Hispanic Bar Association in Arizona and the number of other volunteer pro bono cases that you take in, you know, lawyers we get a bad rap in the media. But Javier, you prove that that is just false in everything you do and the work you do for undocumented and illegal immigrants and immigrants of every status. So, thank you very much.
Javier C. Grajeda: Well, thank you for the kind words and, you know, it’s been great getting to know both of you through Willig. It’s a great organization, and I’m just glad that I that individuals like you to talk about these topics with to really try to improve the workers’ compensation system for everybody that we encounter.
Alan S. Pierce: Yeah. I appreciate that and, as you know, picking up on Jud’s remarks, I look forward to another show in Workers Comp matters. Well, we may approach the same subject from the other side of the fence. I think the employer community and the insurer community also need to be able to weigh in as to the particular difficulties of paying claims or resisting claims, defending claims of immigrant workers, either documented or undocumented.
And I think that would also give some balance to this issue because it is, you know, it has multi-sides to it and it does but up against Federal Law and immigration law. And as a result, I think there is a moral obligation for somebody who profits of the labor of others to be able to provide for that person and his family should there be an injury. Doing that in the context of legal status just exponentially makes it more difficult for all of us. So having said a lot of that, I want to thank you for joining us on Workers Comp Matters. Thank you for listening. Hope to see you on our next show, and please go out and make it a day that matters. Bye-bye.
Outro: Today’s legal news is rarely as straightforward as the headlines that accompany them. On Lawyer to Lawyer, we provide the legal perspective you need to better understand the current events that shape our society. Join me, Craig Williams, and a wide variety of industry experts as we break down the top stories. Follow Lawyer to Lawyer on the Legal Talk Network or wherever you subscribe to podcasts.
Notify me when there’s a new episode!
|Published:||April 20, 2022|
|Podcast:||Workers Comp Matters|
|Category:||Access to Justice , Workers Compensation|
Workers Comp Matters
Workers' Comp Matters encompasses all aspects of workers' compensation from cases and benefits to recovery.