|
Velasquez, 22, was deported last year before he could pursue his case. By rare exception, the U.S. government granted
him a humanitarian visa to return to Rhode Island to have his day in court. Pressure brought by the Mexican consulate in
Boston, the Mexican-American Association of Rhode Island and Sen. Jack Reed secured the visa.
Workers' Compensation Judge Bruce Q. Morin ordered that William J. Gorman Jr., owner of Billy G's Tree Care, pay
Velasquez $800 for two weeks' salary and medical costs that so far approach $17,000.
Velasquez's lawyer, Stephen J. Dennis, called the preliminary findings a victory.
"We won. This is huge," said Dennis. He said he knew of no other jurisdiction where an injured undocumented worker has
been allowed to return to the country to face an employer in court. Turning to Velasquez, Dennis said, "We did it. It
took a lot of work, and I thank you for your courage."
But Dennis said he will pursue a trial to seek more money for Velasquez, based on revised medical assessments.
Judge Morin said depending on the evidence, he could award more benefits, affirm his original order, or reverse it. The
lawyers have five days to file for a trial, otherwise his order becomes final, he said last night.
Michael A. St. Pierre, who represents Gorman, could not be reached for comment.
St. Pierre has acknowledged that Gorman has no Workers' Compensation insurance. In a separate case, the Rhode Island
Department of Labor is pursuing penalties of $1,000 a day against Gorman for not having Workers' Compensation insurance
when Velasquez worked for him.
Dennis alleges that Gorman tried to avoid responsibility last year by alerting immigration authorities, who seized
Velasquez outside the J. Joseph Garrahy Judicial Complex, just prior to a scheduled hearing.
Velasquez said Gorman was standing near the agents with a smile on his face, and told him, "Edgar, adios." A month
later, Velasquez was returned to Mexico.
Said Dennis, "I think it's a message that goes out, that if you're going to hire undocumented workers, you are not going
to be able to use the government services of [Immigration and Customs Enforcement] and have a worker deported without
having them come back. It's tough to do, but it can be done, and I encourage all employees' attorneys to do this, to
seek some compensation for undocumented workers."
Cathleen Caron, executive director of the Global Workers' Alliance, called the judge's decision "groundbreaking."
"The groundbreaking part of this case is that [Velasquez] was thrown out of the country" and then allowed to return on a
humanitarian visa, said Caron. She said she knows of only one other such case - in Texas in 2000.
"First, it's really hard to get a humanitarian visa. Just that alone," Caron said. "The Department of Homeland Security
issues them and they are very specific; typically they are used for medical reasons."
Those factors "make it a very important case. It makes a statement to the employer that if they [workers] get injured on
the job - anyone on your job site, whether they are undocumented or not - you are legally obliged to pay Workers'
Compensation."
Caron said her organization works on "precisely these issues" of what she calls "portable justice."
"These are kind of disposable workers right? [Velasquez's] pushing for his rights is going to make a big difference for
other workers. He really stood up to his employer and the law is really working on his side."
Velasquez overcame tremendous bureaucratic hurdles for his return journey from a remote village in Chiapas to Rhode
Island, through the help of the Mexican-American community here. Lawyer Roberto Gonzalez has also succeeded in getting
extensions on Velasquez's original five-day visa. The last one was for 60 days.
"I am so pleased," Velasquez said through an interpreter. "The attorneys have made a terrific job, and the judge has
done a great job."
He added that he received "a lot of help and inspiration" from those who made his return possible. Asked if he has
spoken with his family in Mexico, Velasquez said his mother traveled five hours by bus to call him on the telephone on
Sunday. "I told her not to worry," he said, and informed her that "the case continues, and there have been a lot of
positive results."
Judge Morin found that it was clear "that a horrific incident occurred" on March 31, 2006, when a chainsaw Velasquez was
using glanced off a fence, sliced through Velasquez's nose and eyelid, and laid his forehead open to the bone. A plastic
surgeon repaired his face, but Velasquez cannot fully close his right eye.
Judge Morin discounted lawyer St. Pierre's argument that Gorman is "an arborist" - despite not having an arborist's
license - and is thereby excluded from the Workers' Compensation statute. The statute says that an arborist is exempt
unless they employ 25 or more employees.
Morin said an unlicensed arborist who claims to be an arborist "is like a person who calls himself a lawyer but
practices without a license."
The judge also found that there was an employer-employee relationship in this case, which makes Gorman liable.
St. Pierre had argued that Velasquez was "an independent contractor" and therefore not responsible for paying Velasquez
for his injuries.
Dennis said of the judge's order, "The main thing I'm really excited about is that the judge established [Velasquez] was
an employee, and that there was an injury and he is going to get medical care. At trial, I hope to prevail on all the
issues."
Dennis said he is seeking a $75,000 settlement, but so far "we haven't been presented with an offer."
|
PROVIDENCE - In a nearly unprecedented case, a judge yesterday issued a preliminary order awarding Workers' Compensation
to Edgar Velasquez, a Mexican illegal immigrant who slashed his face to the bone with a chainsaw last year while working
for a Warwick tree company.