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Billy v. Lopez8/31/1993
OPINION BY
JUDGE LAWRENCE L. KOONTZ, JR.
Tom Billy (employer) and American Reliance Insurance Company (insurer) appeal from a decision of the Workers' Compensation Commission (commission) awarding benefits to Manuel Lopez (Lopez), claimant. Employer contends on appeal that the commission erred in finding that Lopez, an illegal alien at the time of hire, was entitled to compensation benefits when he became eligible for employment in the United States and so notified employer prior to his injury. Holding that credible evidence supports the commission's finding that Lopez "cured" his fraud when he legitimized his employment status and notified employer, we affirm the commission's decision.
Lopez entered the United States illegally in April 1989 and subsequently obtained a false social security card and a false green card. He used these cards to procure employment with Long Fence Company (Long Fence) as a laborer. At Long Fence, Lopez worked for Tom Billy (Billy), then a job supervisor. In early 1990, while employed by Long Fence, Lopez, along with a large group of employees, stayed home on a particular day when the Immigration and Naturalization Service visited Long Fence. Billy had heard rumors that Long Fence was having "immigration problems," and he assumed that Lopez was one of the workers affected.
In April 1990, Billy left Long Fence to form his own company; however, he continued to subcontract for Long Fence. On April 25, 1990, Lopez approached Billy to inquire about a job with Billy's new company. They agreed that Lopez would earn $7.50 per hour and that his employment with Billy would start on April 30, 1990. During their Discussions on April 25, 1990, Billy did not require Lopez to produce proper identification to demonstrate his legal alien status.
On April 30, 1990, Lopez began working for Billy. On that date, Billy gave Lopez tax forms to complete. No other documents were exchanged
on Lopez's first day of work. On May 2, 1990, Lopez returned the completed tax forms to Billy. Billy testified that, upon his request for proper identification, Lopez showed him what appeared to be a social security card and a green card. Lopez denied that Billy asked for any work papers on May 2, 1990 and further denied showing any such documents to Billy. Lopez admitted that he supplied a false social security number on the tax forms which he completed.
Earlier, in March 1990, Lopez had contacted a lawyer and was in the process of obtaining legal work papers. In August 1990, Lopez obtained a proper social security card and green card and gave Billy the new social security number. In January 1992, Billy filed an Employment Eligibility Verification Form (I-9 Form), stating that Lopez was eligible to work in the United States. Billy stated that he was not aware at that time that the first social security number that Lopez had given him was false. Billy testified that even if he had known that Lopez had previously misrepresented his eligibility to work, Billy still would have continued to employ Lopez after he obtained the legal documents because Lopez was a good worker .
On May 20, 1992, Lopez sustained a severe spinal cord injury when a section of fence fell on him while working for Billy at Washington National Airport. As a result of this injury, Lopez is now a paraplegic.
The deputy commissioner held that Lopez's misrepresentation of his eligibility for employment in the United States did not bar his claim for benefits because employer failed to prove that (1) the misrepresentation was made at the time of hire; (2)
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