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Ramirez v. Four Seasons Roofing & Contracting, Inc.

Superior Court of Massachusetts, Suffolk

August 4, 2017

Francisco Alvaro Shul Ramirez
Four Seasons Roofing & Contracting, Inc. et al. [1]

          Filed August 4, 2017


          Anthony M. Campo, Justice


         Francisco Alvaro Shul Ramirez (" Plaintiff") fell from a ladder while performing roofing work on a three-story apartment building. The Plaintiff brings this negligence action against Four Seasons Roofing & Contracting, Inc., Mikhelin de Siderio, Jr., d/b/a BOA Heavy Construction; FDDG MA, LLC as Trustee of Shurtleff Street Realty Trust; and Donato Frattaroli to recover as damages his lost wages and his loss of earning capacity. FDDG MA, LLC and Donato Frattaroli (collectively, " Defendants") now move to compel the Plaintiff to testify on his immigration status. For the following reasons, the Defendants' motion is DENIED.


         On March 7, 2016, the Plaintiff was working as a roofer on an apartment building when he fell 23 feet from the building and sustained numerous injuries, including multiple skull fractures, brain hematomas, vertebral artery dissection, fracture of the right superior and lateral orbits, liver lacerations, and torn rotator cuff. The Plaintiff alleges that he has been unable to work since his fall. Travelers Insurance Company has paid the Plaintiff $194, 531.51 in workers' compensation benefits as of June 10, 2016.

         During a deposition on May 25, 2017, defense counsel sought to inquire into the Plaintiff's immigration status. The Plaintiff did not answer the question, and instead, the parties agreed to submit the issue to the Court for a ruling. Accordingly, the Defendants move pursuant to Mass.R.Civ.P. 30 and 37(a)(2) for an order compelling the Plaintiff to answer questions about his immigration status in the United States.


         A. Standard of Review

         Rule 26 of the Massachusetts Rules of Civil Procedure provides that " [p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party . . ."

         B. Motion to Compel Discovery Regarding Immigration Status

          It is well established in the Commonwealth that undocumented workers may obtain redress for their personal injuries though tort claims. Janusis v. Long, 284 Mass. 403, 410, 188 N.E. 228 (1933). Moreover, a worker is not barred from bringing a workers' compensation claim even where she misrepresents her status in order to obtain employment and is subsequently injured on the job. See Medellin v. Chasman KPA, 17 Mass. Workers' Comp. Rep. 592 (2003) (finding immigration status does not render employee's contract void ab initio because Immigration Reform and Control Act of 1986 (" IRCA") does not preempt G.L.c. 152, § 1(4)); Brambila v. Chase-Walton Elastomers, Inc., 11 Mass. Workers' Comp. Rep. 410 (1997).

         The Defendants argue that discovery on the Plaintiff's immigration status is appropriate because if the Plaintiff cannot legally work in this country, then under Hoffman Plastic Compounds, Inc. v. National Labor Relations Bd., 535 U.S. 137, 122 S.Ct. 1275, 152 L.Ed.2d 271 (2002), he cannot maintain a claim against the Defendants for lost wages. In Hoffman, the Supreme Court determined that the National Labor Relations Board could not award " back-pay" to an undocumented worker because it would have unduly trenched upon explicit statutory prohibitions critical to federal immigration policy as expressed in the IRCA. Id. at 151. The circumstances in Hoffman, however, are distinguishable from the present case. There, the employee was never paid his wages and the courts were left to determine how much the employee was owed. Id. at 140-41. In the instant case, the Department of Industrial Accidents (" DIA") has already determined that the Plaintiff is entitled to his lost wages and Travelers Insurance Company paid him those wages. Thus, there is no dispute over the amount of the Plaintiff's lost wages.

         Furthermore, under G.L.c. 152, § 15, the damages that the Plaintiff receives from the Defendants must be used to reimburse the workers' compensation benefits that Travelers Insurance Company has already paid to the Plaintiff. Since the jury is not required to perform any analysis concerning the amount of lost wages that the Defendants owes to the Plaintiff, and Travelers Insurance Company is to be ...

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