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Fernandez-Lopez v. Jose Cervino

February 22, 1996


On appeal from the Division of Workers' Compensation.

Approved for Publication February 22, 1996.

Before Judges King, Humphreys and Bilder. The opinion of the court was delivered by King, P.j.a.d.

The opinion of the court was delivered by: King

The opinion of the court was delivered by KING, P.J.A.D.

Petitioner Jose Fernandez-Lopez filed a workers' compensation petition on January 13, 1995 claiming that injuries from a fall on May 20, 1994 occurred during the course of his employment with Jose Cervino, Inc. (Cervino). Petitioner sought and was awarded benefits under our Workers' Compensation Act. The respondent Cervino appeals contending error in the award of benefits because petitioner was (1) an undocumented alien worker ineligible for compensation benefits and (2) an independent contractor, not an employee. We find no error and affirm.


Cervino operated as a general contractor in the construction business. It was a prime contractor for the construction of new residential units and the rehabilitation of existing buildings. Cervino used the services of various tradespeople in the performance of its jobs.

Petitioner is an undocumented alien from Guatamala. He had been employed as a plasterer out of a New York plasterers' union for about ten years. He was forced to leave the union in 1994 because he could not produce a "green card" permitting him to work as a noncitizen. 8 U.S.C.A. § 1324. He did odd jobs for several months until a friend referred him to Jose Cervino, the "manager, president or whatever" of Cervino. Petitioner and Jose Cervino agreed that he would do plastering work on one of the buildings which Cervino was rehabilitating. Petitioner was to do the plastering for twelve apartment units and the hallway. The term "plastering" referred to taping the seams of the drywall and ceiling and preparing them for paint, not the traditional style of spreading plaster over wire lath. On May 20, 1994 petitioner was plastering the ceiling over a stairwell area, using a ladder and some planks supplied by Cervino for make-shift scaffolding, when he fell and was hurt.


The Judge found that petitioner's status as an undocumented alien did not bar him from obtaining workers' compensation benefits, stating:

The only case which has been reported is an old case of the Division of Workers' Compensation, [ Wickham v. Monmouth Memorial Hospital, 10 N.J. Misc. 1086, 162 A. 891 (Dept. Labor 1932)], in which the Workers' Compensation Bureau held that a non-residential alien widow could recover compensation for the death of her husband. The award was based on the philosophy that the Compensation Act is remedial and to be liberally construed. . . .

The prevailing view in the United States is that undocumented aliens are entitled to the protection of Workers' Compensation Acts. It is not the illegality of the employment which would bar compensation. It is the illegality of the work itself.

The only requirement for Workers' Compensation is that there be a contract of employment and that the injury arise out of and during the course of that employment. The philosophy which denies unemployment benefits to undocumented aliens is totally different from the philosophy which guides the Workers' Compensation Act. A legal ability to work is a requirement of the unemployment law and, therefore, an undocumented alien who is legally unable to work is disqualified from those benefits.

In addition, the unemployment law is partially funded by the Federal Unemployment Tax and in order to receive the Federal Tax credit, the unemployment law of each state must comply with the Federal standards and granting unemployment to undocumented aliens would violate those standards.

Those considerations do not apply to Workers' Compensation. A comparable benefits act to Workers' Compensation is the No Fault Automobile Insurance Act, particularly since the PIP carrier is required to pay benefits arising out of a motor vehicle accident immediately and is then entitled to a reimbursement from the Workers' Compensation carrier should the accident be found to be compensable, and in the case of Montoya v. Gateway Ins. Comp., 168 N.J. Super. 100, 401 A.2d 1102 (App. Div. 1979), the court upheld the alien's rights to recover under the No Fault Automobile insurance policy.

Cervino argues that under New Jersey law undocumented aliens should not be entitled to workers' compensation benefits. Alternatively, Cervino claims that even if undocumented aliens are generally entitled to benefits, the Judge erred by refusing to consider petitioner's alien status as relevant to the ...

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