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For Indiana's undocumented immigrants, what legal recourse exists for workplace injuries?

After Noe Escamilla was permanently injured at work, the company argued that lost wages should be limited to what he could earn in Mexico. But he wants to be compensated based on U.S. wages.

Kristine Guerra
kristine.guerra@indystar.com
Noe Escamilla was injured while working as a manual laborer for Masonry by Mohler, an Indianapolis company. He and other construction workers were lifting a heavy piece of stone at Wabash College in Crawfordsville. The back injury left him permanently unable to lift more than 20 pounds.
  • Noe Escamilla is suing Shiel Sexton Company, Inc., one of the largest construction managers in the state.
  • About 93,000 undocumented immigrants live in Indiana, according to the Migration Policy Institute.

Noe Escamilla, a 29-year-old man, can't lift more than 20 pounds.

He slipped and fell while he and other construction workers were lifting a heavy piece of stone at Wabash College in Crawfordsville. The accident in 2010 left him permanently injured and no longer able to work in construction. Escamilla, then an undocumented immigrant, is suing to recover income he can no longer earn because of his injury.

His lawsuit against the Shiel Sexton Co., one of the largest construction managers in the state, raises contentious questions before the courts. Should he be allowed to recover income that some say he cannot legally earn? If he were to get paid, should it be in U.S. wages, or should it be based on what he could earn in Mexico, his home country?

And for the 93,000 undocumented immigrants living in Indiana, according to data from the Migration Policy Institute, a Washington, D.C.-based nonprofit think tank, what legal recourse do they have if they're injured while working for an employer that hired them despite their immigration status?

A Montgomery Superior Court judge decided last summer that because Escamilla could not legally work in the U.S., he could not claim lost wages. Judge Heather Dennison further wrote that he violated federal law by misrepresenting his immigration status to get a job. Escamilla is now 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 country as a teenager, began working for Masonry by Mohler, a subcontractor of Shiel Sexton, 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 attorney, declined to be interviewed.

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

Escamilla applied with the Department of Homeland Security to become a permanent resident in 2014, 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 in the U.S., 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 employees generally can't sue their employers in Indiana 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 employer, subcontractor Masonry by Mohler, 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 Chad Staller, president of The 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, Staller added.

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, could theoretically work in his favor and damages based on Mexican currency "might not be appropriate in this matter," Staller said.

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

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

"Masonry by Mohler indemnifies Shiel Sexton from any claims arising from its work," Andrews said. "Our name is attached to it, but there's not a lot of influence that we have on any of this. We don't have any control over the defense or arguments that they present."

Shiel Sexton's headquarters is at 902 Capitol Ave., Indianapolis.

Shiel Sexton's attorney, 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, and for him to be able to work, his future employer would be violating federal immigration laws.

And 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 attorney, 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, he added.

"You're telling these people they're expendable," said Devereux, of Ladendorf Law. "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 have never faced legal questions similar to the ones posed in Escamilla's case.

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

"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. 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.

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

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

Call IndyStar reporter Kristine Guerra at (317) 444-6209. Follow her on Twitter: @kristine_guerra.

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