February 2014 | Page 3 of 3 | Capehart Scatchard

(A New Jersey Perspective)By: Christopher J. Hoare, Esq.Increasingly, defense clients are encountering lawsuits for personal injuries by workers or other plaintiffs who are not citizens of the United States. As undocumented workers come out of the shadows in the U.S., they are comprising a growing percentage of the U.S. construction labor force. Resident aliens who are injured in the course and scope of their employment are eligible to collect State Workers’ Compensation benefits even though those workers are often paid in cash. The fact that an injured worker is not a U.S. citizen, because he or she overstayed a temporary work visa, will not affect his or her rights to Workers’ Compensation benefits under the law.AFFIRMATIVE DEFENSESThe following affirmative defenses must be asserted in the Answer to plaintiff’s Complaint in order to preserve key defenses to loss of income claims asserted by undocumented workers in personal injury lawsuits:Plaintiff’s claims are barred or reduced by operation of the State Workers’ Compensation Act;Plaintiff’s claims are barred by the doctrines of res judicata and collateral estoppel;Plaintiff’s claims are barred by reason of his/her immigration status pursuant to the Immigration Reform and Conservation Act (“IRCA”); andPlaintiff’s claims are barred by operation of the doctrine of judicial estoppel and claim preclusion. DISCOVERYPlaintiff’s counsel will often attempt to proceed to trial on the expectation that his client will be permitted to testify as to how much he made each week and the jury will be invited to calculate his future loss of earning capacity based on that gross figure. That is improper under New Jersey Supreme Court and Appellate Division case law.Although New Jersey’s appellate decisions are currently unsettled, the trend in judicial holdings on the issue is to allow undocumented workers to assert claims for future loss of earning capacity in suits involving personal injuries. However, the plaintiff clearly has the burden of proving his net income as well as the value of his pre-accident earning capacity in the currency used in his foreign country. Invariably, plaintiff will need an economic expert and evidence establishing his pre-accident net wages, such as tax returns or paystubs, in order to survive a motion for partial summary judgment and to preclude a claim for future loss of earning capacity. If plaintiff is not able to produce copies of his filed federal and state tax returns, or doesn’t retain an economic expert, the New Jersey Supreme Court has held that his claim for future loss of earnings cannot be submitted to the jury.Most undocumented workers do not have a valid Social Security number to file taxes. Therefore, it is important during deposition of plaintiffs to determine several important economic measures:How much the plaintiff made in his native country before moving to the U.S.;Whether or not he has a valid driver’s license in any state in the U.S.;The monetary unit of his country of origin; andWhether or not his employer realized that plaintiff was an illegal worker at the time he was hired.The worst case scenario for a plaintiff is that he has never filed tax returns and when he was hired by the employer, he showed them a green card which was valid at the time but has since expired. If this is proven through proper discovery techniques, a motion for partial summary judgment to dismiss plaintiff’s claim for future loss of earning capacity will most likely be granted under New Jersey appellate case law. In addition, motions in limine to preclude plaintiff from presenting evidence of future loss of earning capacity at trial will most likely worry the plaintiff sufficiently to settle any case before trial.WORKER’S COMPENSATION FILE When it comes to defending an injured worker’s future loss of earning capacity, the most important document in the plaintiff’s worker’s compensation file is the Order Approving Settlement of the permanent partial disability award. The Order is usually signed by plaintiff, his counsel in the compensation case, and the administrative law judge who heard testimony on the day of the settlement. There is also a transcription of the proceeding which you should be sure to obtain. The Order will contain important information that is admissible and binding in your liability case, including:List and detailed description of compensable injuries and injured body parts;Percentages of permanent disability for the injured body parts and the total body; andWeekly wages and award information.The Order is admissible as an exception to the hearsay rules on a number of grounds and the effect of the findings by the Judge in Workers’ Compensation is binding on plaintiff in the liability case. Plaintiff is judicially estopped from asserting any claims for additional or more extensive injuries in the liability case than were enumerated and quantified in the Order.TRIALIf plaintiff has never filed tax returns or does not present sufficient economic expert opinion testimony to carry his burden of proof on future income losses, he cannot present future loss of earning claims at trial. Even if he does, it is still possible to prove that plaintiff’s continued employment in the United States labor force is far from certain. Proper cross-examination of plaintiff’s economist and vocational experts can demonstrate to the jury just how speculative future employability is for an undocumented worker under United States immigration laws such as the IRCA.If plaintiff’s economic expert, however, fails to properly calculate the value of plaintiff’s earning capacity in the currency of his native country, it is possible to limit or preclude the economic expert’s testimony on this point by motions in limine. Once the jury understands that plaintiff is an illegal alien, they are still free to decide that plaintiff could be deported to his native country at any time and that all claims for future income in the United States are simply too speculative to award. In that case, the real measure of plaintiff’s damages is the actual value of plaintiff’s future loss of earning capacity calculated in the currency of his native country.Remember: the reason the undocumented worker has moved to the United States is for increased employment opportunities and pay.CONCLUSIONClaims for future loss of earning capacity tend to comprise the biggest single component in accidents resulting in permanent injuries. Claims by injured undocumented workers can be defended effectively if the above steps are followed.

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