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Tarango v. State Industrial Insurance Co.6/13/2001
ible imprisonment.
We conclude that because Tarango could not substantiate his legal right to work with an Immigration and Naturalization Form I-9, he squarely fell into Congress' definition of an "unauthorized alien." As a result, Champion Drywall could no longer continue to employ Tarango -once Tarango's undocumented status was determined - without violating the IRCA and incurring federal penalties.
We note, however, that although the language of the IRCA focuses on punishing the employer of unauthorized aliens, or those agencies that refer unauthorized aliens for a fee, the Act does not provide a reference point for the insurer's role. SIIS is not employing Tarango or referring him for a fee. Thus, it is our view that although SIIS would be facilitating future employment for an unauthorized alien by providing vocational rehabilitation benefits, there is no indication that SIIS is prohibited or would be punished under the IRCA for its involvement. Further, we do not consider it outside the realm of possibility that appellant's future employment lies outside the boundaries of the United States, and such vocational training could be put to use elsewhere.
Nonetheless, we conclude that SIIS is precluded from providing vocational training pursuant to state law. The state law in question is NRS 616C.530. The statute provides:
"An insurer shall adhere to the following priorities in returning an injured employee to work:
1. Return the injured employee to the job he had before his injury.
2. Return the injured employee to a job with the employer he worked for before his accident that accommodates any limitation imposed by his injury.
3. Return the injured employee to employment with another employer in a job that uses his existing skills.
4. Provide training for the injured employee while he is working in another vocation.
5. Provide formal training or education for the injured employee in another vocation.*fn17"
We have held in the past that " he intent of the legislature is the controlling factor in statutory interpretation." Here, NRS 616C.530 declares itself to be based on priority, and as a result, we conclude that the intent of the legislature is clear and should be given its ordinary meaning. Thus, the statute provides that the insurer shall first attempt to return the injured worker to his former job, and lastly, the insurer shall provide formal training or education.
In this instance, SIIS determined to deny all vocational training benefits because Tarango failed to provide proof of his lawful right to work in the United States. We conclude that this determination was in harmony with the IRCA and NRS 616C.530.
Foremost, if Tarango was a documented worker, he clearly could have returned to similar employment in the United States. Tarango was not incapacitated. Rather, the record indicates that the only limitation on Tarango's abilities was that he should lift no more than fifty pounds.
Tarango's ability to work placed SIIS in a precarious position. First, SIIS could have returned Tarango to the workforce in a capacity provided by NRS 616C.530, and thereby caused an employer to violate the IRCA by hiring Tarango. Second, SIIS could have ignored the priority scheme established by the legislature in the vocational rehabilitation statute and awarded Tarango formal training based solely on his illegal status. Or third, SIIS could have denied all vocational rehabilitation benefits. We conclude that the latter option was the only logical choice.
As to the first alternative, Tarango's injury prevented him from returning to Champion
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