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Plea to be heard for benefits of worker illegally in country
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DOVER, Del. (AP) — Delaware’s Supreme Court is mulling whether to overturn a judge’s decision terminating the disability benefits of a woman who is in the country illegally and was injured at work.

The court’s five justices heard arguments Wednesday regarding Magdalena Guardado. Her attorneys say the state Industrial Accident Board erred in terminating her total disability benefits last year, and that a Superior Court judge erred in upholding that decision earlier this year.

At issue is whether Guardado’s former employer has adequately established that there are jobs available for her, given various limitations that have resulted in her being designated a “displaced worker.” Under Delaware law, a displaced worker is entitled to disability benefits if he or she suffers a compensable injury and faces significant challenges in finding regular employment opportunities.

Attorney Walt Schmittinger argued that Guardado’s former employer has failed to establish that there are actually jobs available for her, given the “constellation” of restraints she faces. Those restraints include not just Guardado’s undocumented status, but her limited education and experience, inability to speak or read English, and limited use of her left hand, according to Schmittinger.

“This claimant is in fact a displaced worker,” he argued, adding that there is no evidence that someone with all of Guardado’s constraints is actually employed in Delaware.

“In short, she doesn’t exist in this labor market,” Schmittinger said.

Chief Justice Leo Strine noted that the court must give deference to the board, and that undocumented workers are regularly employed in Delaware.

“The board made the decision ... she can find relatively entry-level employment in the retail or food industries if she tries. How can we say that there isn’t substantial evidence that supports that decision?” Strine asked.

Andrew Carmine, an attorney for Guardado’s former employer, Roos Foods, said the now-defunct cheese company has met its burden of showing there are jobs available to her.

A University of Delaware economics professor who testified for the company estimated that there are roughly 20,000 to 25,000 undocumented workers in the state. According to court records, an initial labor market survey found 17 available jobs that a vocational expert said were within Guardado’s physical restrictions and vocational qualifications.

“There was sufficient and substantial evidence to support that this woman, this claimant, can go back to work realistically. There’s work available for her” Carmine said.

Carmine also noted that the Industrial Accident Board found that, in the four years after being medically cleared to return to work, Guardado had applied for only 11 jobs, all in the restaurant industry.

Guardado, an El Salvador native who came to the United States in 2004, injured her left wrist in 2010 while working at Roos Foods, which ceased operations in 2014 following a listeria outbreak and the suspension of its food facility registration.

After being paid various periods of total disability, Guardado returned to work until undergoing surgery in 2014. A doctor cleared her to return to work less than two months later, and the company subsequently sought to terminate her total disability benefits.

The Industrial Accident Board denied the company’s petition in 2015, saying Guardado, while physically capable of working, was a “displaced worker” solely because of her immigration status, and that the company’s labor market survey had not shown there were jobs within Guardado’s reach.

But the Supreme Court ruled in 2016 that a person’s status as a worker living in the country illegally is not relevant in determining whether she is presumed to be a displaced worker.

Following a rehearing last year, the board again concluded that Guardado was a displaced worker, based on her limited education and minimal work experience as an unskilled laborer with limited hand movement. The panel nevertheless found that Guardado was medically employable, and that Roos Foods had demonstrated the availability of jobs within her capabilities.