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Paola Flores was as a driver for Westside Accurate Courier Services when she was injured in a motor vehicle accident on August 23, 2018. Temporary disability was paid by the employer from February 9, 2019 through February 26, 2019.

After the accident she returned to work. The employer told her they had plans to promote her but they needed to verify some information about her before they could give her the promotion.

In the process of promoting Flores, the employer discovered that she was not eligible to work. When this was discovered she was given two choices. One was to resign, and the other one was to be fired because she could not work in the United States. She chose to resign.

Subsequent medical reports state that she could only do modified work compatible with the work restrictions identified. Thus, the case proceeded to trial on the issue of continuing temporary disability. She contended that since she can only do modified duty and modified duty is not available, she was therefore entitled to temporary disability benefits.

A Finding and Order issued denying her further TD benefits. A Petition for Reconsideration was denied in the panel decision of Flores v Westside Accurate Courier Services (ADJ11673008),

Labor Code section 1171.5 states in part “All protections, rights, and remedies available under state law, except any reinstatement remedy prohibited by federal law, are available to all individuals regardless of immigration status who have applied for employment, or who are or who have been employed, in this state.”

However, the California Supreme Court held in Salas v. Sierra Chemical Co., (2014) 59 Cal.4th 407, 425 [79 Cal.Comp.Cases 782]. that the statute is “is not preempted by federal immigration law except to the extent it authorizes an award of lost pay damages for any period after the employer’s discovery of an employee’s ineligibility to work in the United States.

Although the Court’s decision in Salas pertained to FEHA, the ruling clearly applies to the provisions of the Labor Code regarding workers’ compensation injury claims.

The circumstances in this matter are analogous to those where the WCAB has held that an injured employee who is terminated from his or her employment for good cause is not entitled to temporary disability benefits. (Butterball Turkey Co. v. Workers’ Comp. Appeals Bd. (Esquivel) (1999) 65 Cal.Comp.Cases 61 (writ den.); Peralta v. Party Concepts (2016) 2016 Cal.Wrk.Comp. P.D. LEXIS 100 (Appeals Board panel decision).)

Here, whether applicant resigned or was “constructively discharged,” defendant cannot legally employ applicant and in turn cannot be liable for benefits incurred after it learned that applicant could not be employed. Applicant’s inability to work is not the result of defendant’s conduct; it is because applicant cannot legally be employed. Thus defendant is not liable for, and applicant is not entitled to, temporary disability indemnity benefits for any period of disability caused by her injury, after July 25, 2019.”