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Ruiz v. Belk Masonry Company2/19/2002
PUBLISHED
Appeal by defendants from opinion and award of the North Carolina Industrial Commission filed 13 September 2000. Heard in the Court of Appeals 17 October 2001.
Defendants appeal from the award of workers' compensation benefits to plaintiff Francisco Ruiz. Plaintiff sustained an injury while employed as a construction worker for defendant Belk Masonry Company, Inc. on 7 October 1997. Plaintiff fell approximately seventy feet from a forklift onto a concrete floor and sustained a traumatic brain injury, a kidney contusion, and several fractures. He was transported to Carolinas Medical Center and was hospitalized until 7 November 1997. Plaintiff was then transferred to the Charlotte Institute of Rehabilitation where he received physical, occupational, and speech therapy, along with psychological counseling.
Plaintiff was placed in an outpatient program under the care of his brother, Jose Ruiz, on 3 December 1997, and continued to participate in follow-up treatment with his treating physician, Dr. James T. McDeavitt. Dr. McDeavitt testified plaintiff reached maximum medical improvement on 9 February 1998. Dr. McDeavitt also testified plaintiff did not require twenty-four hour attendant care, and that with a vocational rehabilitation plan, plaintiff might be able to return to work.
Plaintiff presented the testimony of a vocational rehabilitation expert and a certified life care planner. The life care planner testified that plaintiff needed twenty-four hour care. Patrick Clifford (Mr. Clifford), a vocational rehabilitation expert, testified that plaintiff could not even perform sedentary work, had limited ability to walk or drive, and had limited cognitive abilities.
Plaintiff was an illegal or undocumented alien at the time of his hiring and at the time of the accident. Plaintiff presented a false social security card and I-9 form to defendant-employer when he was employed.
I.
Defendants first argue the Commission erred in awarding workers' compensation benefits to plaintiff because plaintiff was an illegal alien. We disagree.
Defendants argue the statutory construction of N.C. Gen. Stat. § 97-2(2) does not allow for illegal aliens to be classified as "employees." Defendants further argue plaintiff does not have an earning capacity. However, N.C. Gen. Stat. § 97-2(2) (1999) defines "employee" as "every person engaged in an employment under any appointment or contract of hire or apprenticeship, express or implied, oral or written, including aliens, and also minors, whether lawfully or unlawfully employed[.]" The precise issues defendants raise were determined by our Court in Rivera v. Trapp, 135 N.C. App. 296, 519 S.E.2d 777 (1999). Rivera presents a similar factual situation to the case before us. In Rivera, the plaintiff was employed as a roofer despite his not possessing a green card or a social security number. The plaintiff was seriously injured following a three-story fall from a forklift. Our Court held that N.C.G.S. § 97-2(2)
defines employee to include "every person engaged in an employment . . . including aliens." The statute makes clear that the General Assembly sought to include individuals like the plaintiff under the protections of the Workers' Compensation Act.
Further, plaintiff presented sufficient evidence to show that prior to the injury he did in fact have earning capacity as a roofer. Rivera, 135 N.C. App. at 303, 519 S.E.2d at 781.
N.C.G.S. § 97-2(2) does not preclude plaintiff from receiving workers' compensation benefits based solely on his status as an illegal alien. "'The philosophy which supports the [Workers'] Compensation Act is that
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