DOVER, Del. (AP) - A Delaware judge has upheld a state panel’s decision terminating the disability benefits of a woman who is in the country illegally and was injured at work.
This week’s ruling follows the state Supreme Court’s 2016 reversal of a court decision upholding the Industrial Accident Board’s determination that Magdalena Guardado, a native of El Salvador who came to the United States in 2004, was entitled to disability benefits.
Following a rehearing last year, the board concluded that there were jobs available within Guardado’s capabilities and that she was no longer entitled to benefits.
A Superior Court judge upheld that decision Wednesday.
Guardado, 40, injured her left wrist in 2010 while working at Roos Foods, a cheese company that ceased operations in 2014 following a listeria outbreak and the suspension of its food facility registration.
After being paid various periods of total disability, Guardado returned to work until undergoing surgery in 2014. A doctor cleared her to return to work less than two months later and the company subsequently sought to terminate her total disability benefits.
The Industrial Accident Board denied the company’s petition, saying Guardado, while physically capable of working, was a “displaced worker” solely because of her immigration status, and that the company’s labor market survey had not shown there were jobs within Guardado’s reach.
“How exactly does an employer go about showing that an illegal alien has job opportunities?” Supreme Court Justice James Vaughn Jr. asked at a 2016 court hearing.
In a case of first impression in Delaware, the Supreme Court remanded the case to the board, saying a person’s status as a worker living in the country illegally is not relevant in determining whether she is presumed to be a displaced worker.
Following a rehearing last year, the board again concluded that Guardado, who does not speak English, was a displaced worker. Unlike its earlier determination, the board’s decision was based not on Guardado’s immigration status, but on her limited education and minimal work experience as an unskilled laborer with limited hand movement.
The board nevertheless found that Guardado was medically employable, and that Roos Foods had demonstrated the availability of jobs within her capabilities.
In upholding that decision, Judge Richard Stokes noted testimony on the company’s behalf from Ellen Lock, a vocational case manager, and Desmond Toohey a University of Delaware economics professor who prepared a report regarding jobs that exist in Delaware for undocumented workers.
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