In this case, most notably known as “the Tuba case,” an employee fell from a tree while working at All Seasons Landscaping of Ridgefield, LLC on December 16, 2011 and broke his back. The Claimant, Mr. Tuba, filed a claim through the Workers’ Compensation Act for medical and indemnity benefits available to him under the law. Unfortunately, the owner of All Season’s Landscaping of Ridgefield, LLC never purchased workers’ compensation insurance, dissolved his company, and left the state. As a result, the claim proceeded against the Second Injury Fund pursuant to C.G.S. §31-355(b).

Claimants are eligible to recover workers’ compensation benefits in the event they qualify as an “employee” under C.G.S. 31-275(9)(a). Under that definition, it states that a claimant recover benefits under the Workers’ Compensation Act if they are “any person who” meets a long list of criteria. It does not state, any CITIZEN, who, or any legalperson who…So what about undocumented workers injured on the job? 

The State of Connecticut relied upon the CT Supreme Court case, Dowling v.Slotnik, 244 Conn. 781 (1998) which determined that employees, regardless of their immigration status, were entitled to recover temporary total disability benefits, permanent partial disability benefits, as well as payment for any and all necessary and related medical treatment. This meant that as long as an employee was determined to have no physical work capacity, they were entitled to recovery benefits under The Act.

As claimants progress through their treatment, their medical providers may determine that they have a partial work capacity and impose various physical restriction in order for those people to return to work. In this case, Mr. Tuba was given a 10-pound lifting restriction in January of 2014. Once a Claimant is found to have a work capacity, they must demonstrate that they are “ready and willing” to find employment pursuant to C.G.S. 31-308(a). Since undocumented workers are not legally eligible to work, practice has held that they have been excluded from recovering temporary partial disability benefits under the Act.

In common law, there is the “Osterlund doctrine” which allows for claimants to recover total incapacity benefits under C.G.S 31-307 when, taking a holistic determination of various factors, the claimant can demonstrate that he/she does not, in fact, have a vocational work capacity. In these instances, the Commissioners take into consideration the claimants’ physical work restrictions as well as their work history, age, language abilities, transferable skills, computer skills, etc. to determine if they do, in fact, have an ability to access the job market.

So, taking into consideration all the factors in Mr. Tuba’s case, although he was given a physicalwork capacity, realistically speaking, he was not trulyvocationallyemployable. Mr. Tuba worked as a laborer his whole life and he was unable to do manual labor work with a permanent, ten-pound lifting restriction. Additionally, he could only speak Spanish, had minimal education, and had no computer or transferable skills. Therefore, two vocational experts agreed that Mr. Tuba did not, in fact, have a vocational work capacity.

Attorney Lyon researched the ways in which claimants could prove that one is truly unemployable and relied upon precedent, binding decisions in the State of Connecticut to see how Claimants can successfully qualify for Total Incapacity Benefits under C.G.S. 31-307 (SeeMarandino v. Prometheus Pharmacy,105 Conn. App. 669 (2008);Bode v. Ct Mason Contractors,130 Conn. App. 672 (2011); and O’Connor v. Med-Center Home Health Care, Inc.140 Conn. App. 542 (20130). After realizing that Mr. Tuba satisfied the requisite criteria, she presented her argument for Mr. Tuba to recover “Osterlund Benefits” regardless of his immigration status.

The Trial Commissioner’s Decision:

The opposing counsel agreed with Attorney Lyon’s argument and the parties entered into an agreement awarding Mr. Tuba retroactive temporary, total disability benefits as well as ongoing total incapacity benefits under the Act. Upon presenting the agreement to the Commissioner for approval, the Trial Commissioner found that undocumented workers were precluded from recovering “Osterlund benefits” under the Immigration Reform Act of 1986. The Trial Commission issued her decision that the Stipulated Finding of Facts was “untenable under the law” and threw out the parties’ agreement. She also failed to find the uncontested evidence reliable and denied Mr. Tuba his temporary total disability benefits as well as his total incapacity benefits.

Attorney Lyon appealed this decision in front of the Compensation Review Board on November 22, 2019. Luckily, on January 31, 2020 the CRB issued their final decision reversing the Trial Commissioner’s decision in favor of Mr. Tuba. As a result, Mr. Tuba was granted eight yearsof retroactive benefits.

Angel Tubasaquipay v. All Seasons Landscaping of Ridgefield, LLC,was a case of first impression and, with the CRB decision, has become binding precedent in the State of Connecticut that undocumented workers are eligible for total incapacity benefits under the CT Workers’ Compensation Act.