COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Annunziata and Senior Judge Coleman ∗
Argued at Richmond, Virginia
ARTURO RIOS
OPINION BY
v. Record No. 0804-00-2 JUDGE SAM W. COLEMAN III
MARCH 6, 2001
RYAN INC. CENTRAL AND
RELIANCE NATIONAL INDEMNITY COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Gregory O. Harbison (Craig Davis; Geoffrey R.
McDonald & Associates, P.C., on brief), for
appellant.
S. Vernon Priddy, III (Patsy L. Mundy; Sands,
Anderson, Marks & Miller, on brief), for
appellees.
Arturo Rios appeals the Workers' Compensation Commission's
decision denying his application for disability benefits. He
argues that: (1) the commission erred in finding he was not an
employee under the Workers' Compensation Act; (2) the denial of
benefits violated his constitutional equal protection rights;
(3) the deputy commissioner erred by admitting hearsay evidence;
and (4) the deputy commissioner erred by refusing to recuse
∗
Judge Coleman participated in the hearing and decision of
this case prior to the effective date of his retirement on
December 31, 2000 and thereafter by his designation as a senior
judge pursuant to Code § 17.1-401.
herself. For the following reasons, we affirm the commission's
decision.
I. BACKGROUND
Rios was employed by Ryan Inc. Central in August 1994 as a
laborer and truck driver. On August 25, 1998, Rios sustained an
injury by accident arising out of and in the course of his
employment. Rios filed a claim for workers' compensation
disability benefits. Employer defended the claim, arguing,
among other things, that Rios was an alien who was not
authorized by the United States immigration law to work in this
country and, thus, was not an "employee" within the meaning of
the Workers' Compensation Act (Act).
At the time Rios was hired, he signed an employment
eligibility and verification form required by federal law,
attesting that he was an alien authorized to lawfully work in
the United States. Rios supplied a social security number and a
resident alien number to complete the form. After Rios filed
his compensation claim, a special investigator with employer's
insurance carrier investigated the situation. The investigator
testified that the social security number Rios provided his
employer was fraudulent. The social security number was issued
in 1959 or 1960 to a person in California who is now deceased.
Further, an official from the Immigration and Naturalization
Service (INS) informed the deputy commissioner that the resident
alien number Rios provided was also fraudulent.
- 2 -
At the hearing, Rios asserted that he should be considered
a "legal citizen" at the time he was injured, and, thus,
entitled to benefits, because he had married an American
citizen. On January 20, 1998, seven months before Rios' injury,
he married Juanita Santos, an American citizen. Additionally,
Juanita Santos testified that a couple of weeks after they were
married, she submitted paperwork to INS seeking to adjust Rios'
alien status. She stated that she had never received a response
to her application. She further testified that she submitted
another request for adjustment of status the week before the
hearing. Rios conceded he did not have any documentation from
INS establishing his citizenship or his status as a lawful
permanent resident.
II. ANALYSIS
A. Evidentiary and Procedural Issues
We first address Rios' claims of evidentiary or procedural
errors because any errors at the hearing might require reversal
and remand of the commission's decision without reaching the
merits of Rios' claim that he was an "employee" under the Act.
Prior to the deputy commissioner's evidentiary hearing,
Rios sought to exclude as inadmissible hearsay the evidence from
INS that he had provided a fraudulent alien registration number
on his employment eligibility and verification form. Prior to
the hearing, INS refused to provide the information to employer,
informing employer that the request must come from the
- 3 -
commission. Thus, the deputy commissioner, upon employer's
request, obtained the information and forwarded it to both
counsel for employer and Rios. Rios filed a motion to exclude
the evidence and a motion to recuse the deputy commissioner,
arguing that the evidence was inadmissible hearsay and had been
improperly obtained on employer's behalf through the adversarial
efforts of the deputy commissioner.
The deputy commissioner did not err by admitting the INS
evidence. The Supreme Court and this Court have repeatedly
recognized that hearsay evidence is admissible in workers'
compensation proceedings. See Transfer v. Dicks, 229 Va. 548,
555, 331 S.E.2d 449, 453 (1985) (recognizing that commission is
not governed by common law rules of evidence); Williams v.
Fuqua, 199 Va. 709, 714, 101 S.E.2d 562, 566 (1958); Derby v.
Swift & Co., 188 Va. 336, 341, 49 S.E.2d 417, 419 (1948); CLC
Constr., Inc. v. Lopez, 20 Va. App. 258, 263 n.1, 456 S.E.2d
155, 157 n.1 (1995); Cox v. Oakwood Mining, Inc., 16 Va. App.
965, 969, 434 S.E.2d 904, 907 (1993) (recognizing that
commission's rules permit hearsay evidence); see also Rule 2.2,
Rules of the Virginia Workers' Compensation Commission.
"[R]igid or technical rules of pleading, evidence, or practice
in the conduct of hearings shall not apply so long as the
procedures adopted protect the substantial rights of the
parties." Sergio's Pizza v. Soncini, 1 Va. App. 370, 376, 339
S.E.2d 204, 207 (1986) (citations omitted).
- 4 -
The INS document was provided to Rios and his counsel in
advance of the hearing. Rios advances no claim that the
document is not authentic or does not reflect the facts as to
Rios' situation; in fact, Rios acknowledges that the document is
accurate. The evidence was reliable, relevant, and material.
The commission did not abuse its discretion by admitting the
evidence.
The deputy commissioner did not err by refusing to recuse
herself. See Deahl v. Winchester Dep't of Soc. Servs., 224 Va.
664, 672-73, 299 S.E.2d 863, 867 (1983) (stating that a trial
judge's recusal decision is left to the sound discretion of the
judge). Rios argues that it was inappropriate for the deputy
commissioner to have obtained the information from INS on
employer's behalf and then to evaluate the evidence and decide
the claim. He asserts that the deputy commissioner took an
active role in obtaining critical evidence on behalf of
employer, which was detrimental to him.
Hearing officers for administrative agencies, unlike trial
judges, customarily and routinely assist in securing and
obtaining evidence in cases at the request of the parties. No
evidence indicates that the deputy commissioner harbored or
demonstrated bias or prejudice against Rios in obtaining
information from another governmental agency, INS. The deputy
commissioner obtained the information only after employer
requested it and was informed by INS that the request must come
- 5 -
from the commission. We see little difference between the
deputy commissioner informally requesting the evidence from INS
and directing a subpoena to INS for the documents. The deputy
commissioner did not abuse her discretion by declining to recuse
herself.
B. Employee Status
We next consider whether an unauthorized or illegal alien,
who claims to have been married to an American citizen at the
time of the accident, but after the date of employment, is an
"employee" under the Act.
As a claimant seeking benefits, Rios bears the burden of
establishing that he is an employee under the Act. See Granados
v. Windson Dev. Corp., 257 Va. 103, 108, 509 S.E.2d 290, 293
(1999). Code § 65.2-101 defines, in pertinent part, an
"employee" as "[e]very person, including a minor, in the service
of another under any contract of hire." 1 In Granados, the
Supreme Court held that an illegal alien is not an "employee"
1
Section 65.2-101 was amended, effective April 19, 2000, to
provide that an employee is "[e]very person, including aliens
and minors, in the service of another under any contract of hire
. . . whether lawfully or unlawfully employed . . . ." In view
of the Supreme Court's construction in Granados of Code
§ 65.2-101 prior to the April 19, 2000 amendment, we are
constrained by the holding that prior to the amendment an
illegal alien was not an employee under the Act. Therefore, we
cannot give the amendment retroactive effect unless and until
the Supreme Court shall declare that the amendment was intended
"as a legislative interpretation of the original act." Boyd v.
Commonwealth, 216 Va. 16, 20-21, 215 S.E.2d 915, 918 (1975).
- 6 -
under the Act because "under the Immigration Reform and Control
Act of 1986, an illegal alien cannot be employed lawfully in the
United States." Id. at 108, 509 S.E.2d at 293. The Court
concluded that Granados was not lawfully in the service of the
employer under a valid or enforceable contract for hire and,
thus, was not an "employee" as defined by Code § 65.2-101.
Accordingly, the Court held that Granados was "not eligible to
receive compensation benefits as an 'employee' under the Act
because his purported contract of hire was void and
unenforceable." Id. at 108-09, 509 S.E.2d at 293.
Although Rios asserts that he believed in good faith that
he became a citizen when he married an American citizen and,
thus, could be lawfully employed, Rios was an "unauthorized
alien" at the time he attempted to contract for hire with Ryan.
Thus, under the holding in Granados, the contract of employment
was "void and unenforceable." Accordingly, Granados controls
our decision, which is that Rios was not an "employee" under the
Act as it then read.
Nevertheless, in an effort to distinguish his situation
from the controlling principles of Granados, Rios appears to
advance two arguments in support of his claim that he had become
lawfully employed at the time of his injury: (1) he had become
a citizen by virtue of his marriage to Juanita Santos, thereby
validating his employment contract; and (2) he was a "lawful
- 7 -
permanent resident" of the United States by virtue of his
marriage to Juanita Santos.
Federal law provides, with respect to employment, that an
"unauthorized alien" is an alien who is not at the time of
employment either "(A) an alien lawfully admitted for permanent
residence, or (B) authorized to be so employed by this chapter
or by the Attorney General." 8 U.S.C. § 1324(h)(3) (1994).
However, under current United States immigration law, two
situations exist in which Rios might claim that he lawfully
resides in the United States and, thus, is an "employee" under
the Act. First, § 1430(a) provides that an alien may become a
naturalized citizen by marriage to an American citizen, and
second, based on the provisions of § 1255, the alien qualifies
as a "permanent resident" and is not, therefore, an
"unauthorized alien." See 8 U.S.C. §§ 1430(a), 1255 (1994 &
Supp. 1998).
Assuming Granados does not apply because Rios' employment
contract became retroactively valid and enforceable after he
became a naturalized citizen by virtue of § 1430(a) or because
he became "an alien lawfully admitted for permanent residence"
by virtue of § 1255, Rios has failed to prove that he satisfied
the requirements of either statute to be a citizen or an alien
lawfully admitted for permanent residence.
- 8 -
Section 1430(a) provides:
Any person whose spouse is a citizen of the
United States may be naturalized upon
compliance with all the requirements of this
subchapter except the provisions of
paragraph (1) of section 1427(a) of this
title if such person immediately preceding
the date of filing his application for
naturalization has resided continuously,
after being lawfully admitted for permanent
residence, within the United States for at
least three years, and during the three
years immediately preceding the date of
filing his application has been living in
marital union with the citizen spouse
. . . .
Section 1430 requires that to be eligible for
naturalization by marriage to an American citizen, the alien
must have resided continuously after being lawfully admitted for
permanent residence within the United States, for at least three
years and during that time been living in marital union with the
citizen spouse. Rios failed to prove that he was a lawful
permanent resident, that he resided in the United States for the
requisite period after having been declared a lawful permanent
resident, or that he resided in marital union with Juanita
Santos for three years. In fact, Rios only claims to have been
married to Santos since January 1998. Thus, even if becoming a
naturalized citizen affected Rios' status for purposes of the
holding in Granados, the evidence proves that Rios failed to
satisfy a number of the requirements that would have made him
eligible to apply for naturalized citizenship.
- 9 -
Alternatively, Rios asserts that he was an "alien lawfully
admitted for permanent residence." He seems to claim that
because his wife filed an application with INS "to verify [his]
status as a permanent legal resident alien" based on their
marriage, that for purposes of the Act he should be considered
an "employee." Rios apparently claims, without referencing a
controlling statute, that "an alien who marries an American
citizen receives permanent resident alien status." Section 1255
provides that an alien's status may be adjusted, in certain
circumstances and if specified requirements are satisfied, to
that of a lawful permanent resident. However, Rios has failed
to prove that he satisfied any statutory requirements entitling
him to permanent resident alien status. Merely asserting that
one is eligible to attain lawful status without complying with
the statutory requirements to adjust that status is insufficient
to prove a person's status as a lawful permanent resident.
Moreover, even if Santos had submitted a change-of-status
application for Rios, no evidence proves that the application
had been acted upon or Rios' status changed. Assuming that the
holding in Granados might not apply if Rios had become a
permanent resident alien at the time of the hearing, which we do
not decide, such was not the case and on this record Rios was an
unauthorized alien at the time of the hearing.
Accordingly, we uphold the commission's findings that Rios
was an unauthorized alien at the time of his putative contract
- 10 -
of hire with Ryan and, because the contract was void and
unenforceable under the Granados holding, Rios was not an
"employee" of Ryan under the Act.
C. Equal Protection Claim
Rios also argues that, even assuming he was an illegal
alien, denial of workers' compensation benefits violates his
constitutional right to equal protection under the law. He
asserts that because he had a contract for hire with his
employer at the time of the accident, he became an "employee"
under the Act entitled to the same benefits as any other
employee under a similar contract of hire. This argument is
also foreclosed by the Supreme Court's holding in Granados. In
Granados, the Supreme Court rejected claimant's assertion that
the denial of workers' compensation benefits violated his
constitutional equal protection rights, holding that "[t]he
denial of benefits results from [claimant's] failure to meet his
burden of proving that he was an 'employee' under the Act, not
from his status as an illegal alien." 257 Va. at 109, 509
S.E.2d at 293.
For the foregoing reasons, we affirm the commission's
decision.
Affirmed.
- 11 -
Annunziata, J., concurring.
I concur in the majority's judgment affirming the
commission's denial of benefits to the claimant. I agree that
the outcome in this case is, on its face, dictated by the
Supreme Court's decision in Granados v. Windson Dev. Corp., 257
Va. 103, 509 S.E.2d 290 (1999). I write separately only to
emphasize that recent legislative action may provide an avenue
by which the Supreme Court, if it is so inclined, could re-visit
the question presented in this case and award benefits to the
claimant, notwithstanding its holding in Granados. For obvious
reasons, I do not believe this Court could appropriately take
that action.
Last year, in response to the Granados decision, the
legislature amended the definition of an "employee" for purposes
of the Workers' Compensation Act. The Code now defines an
employee as "[e]very person, including aliens . . ., in the
service of another under any contract of hire . . ., written or
implied, whether lawfully or unlawfully employed . . . ." Code
§ 65.2-101. Clearly, by its action, the legislature declared
its intent to bring aliens, even those working illegally, under
the Workers' Compensation Act.
The amendment adopted by the legislature making clear the
Act's coverage of illegal aliens, reflects the prevailing view
of the law in other states. See 2 Arthur Larson and Lex K.
Larson, Larson's Workers' Compensation Law § 37.02, at 37-3,
- 12 -
D37-3 to D37-4 (2000). 2 It is also consistent with the central
purpose of the Immigration Reform Act which seeks to inhibit the
employment of undocumented workers by punishing employers rather
than employees who violate its dictates, see 8 U.S.C.
§ 1324a(a)(1), (2); 1324a(e)(4), (e)(5), (f) (2000), and serves
the beneficent purpose of the Workers' Compensation Act as well.
Feitig v. Chalkley, 185 Va. 96, 98, 38 S.E.2d 73, 73 (1946) (the
purpose of the Act is to protect workers by "plac[ing] upon
industry as an expense of the business the pecuniary
loss . . . attendant upon all accidents to employees within the
hazards of the industry"); see also Fauver v. Bell, 192 Va. 518,
521, 65 S.E.2d 575, 577 (1951).
"When amendments are enacted soon after controversies arise
'as to the interpretation of the original act, it is logical to
regard the amendment as a legislative interpretation of the
original act . . . .'" Boyd v. Commonwealth, 216 Va. 16, 20-21,
215 S.E.2d 915, 918 (1975) (citation omitted). Because Granados
was based on the Supreme Court's interpretation of the statutory
2
All but one of the several jurisdictions outside Virginia
that have considered the question have held that a claimant's
illegal alien status does not affect or preclude workers'
compensation benefits awards. The holding by the Wyoming
Supreme Court in Felix v. State, 986 P.2d 161 (Wyo. 1999) is the
only exception found. However, it is based on specific
statutory language which restricts the term "employee," and
limits its workers' compensation coverage to "'aliens authorized
to work by the United States department of justice, immigration
and naturalization service.'" Id. at 163 (quoting Wyo. Stat.
Ann. § 27-14-102(a)(vii) (Michie Cum. Supp. 1996)).
- 13 -
definition of an "employee," under the reasoning of Boyd, the
Court could decide that Granados was, in fact, contrary to the
legislature's intent when it originally defined "employee."
Hence, the Court could overrule Granados and award benefits to
the claimant in this case.
- 14 -