Teodosia Alvarado, widow v. Krajewski, etc

• Court: Court of Appeals of Virginia
• Decided: January 9, 2001
• Docket: 0981004
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Willis, Bray and Clements Argued at Alexandria, Virginia

TEODOSIA ALVARADO, WIDOW OF JOSE AUCEDA-MATAMOROS, LESLIE MELISSA AUCEDA (INFANT) AND JANIRA EMILIA AUCEDA (INFANT) MEMORANDUM OPINION* BY v. Record No. 0981-00-4 JUDGE JERE M. H. WILLIS, JR. JANUARY 9, 2001 MARK KRAJEWSKI, EAKIN YOUNGENTOB ASSOCIATES, INC., HARTFORD INSURANCE COMPANY OF THE MIDWEST, B & T CONTRACTING, INC., NORTHERN INSURANCE COMPANY OF NEW YORK AND UNINSURED EMPLOYER'S FUND

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

Raul J. Romero, III (Trapeni, Romero & Morrison, P.C., on brief), for appellants.

William J. Minor, Jr., for appellee Mark Krajewski.

Kevin J. O'Connell (O'Connell & O'Connell, on brief), for appellees Eakin Youngentob Associates, Inc. and Hartford Insurance Company of the Midwest.

William S. Sands, Jr. (Duncan and Hopkins, P.C., on brief), for appellees B & T Contracting, Inc. and Northern Insurance Company of New York.

No brief or argument for appellee Uninsured Employer's Fund.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. Teodosia Alvarado, et al., appeal the decision of the

Workers' Compensation Commission dismissing their claim for lack

of jurisdiction. They argue that the full commission erred as a

matter of law by applying retroactively Granados v. Windson

Development Corp., 257 Va. 103, 509 S.E.2d 290 (1999), which

held that illegal aliens are not "employees" under Code

§ 65.2-101. For the reasons that follow, we affirm.

I. BACKGROUND

On January 14, 1997, while working for Mark Krajewski, Jose

Auceda-Matamoros suffered an injury that resulted in his death.

A claim for benefits was filed by his widow, Teodosia Alvarado,

and their two children seeking death benefits and funeral

expenses. Mark Krajewski, the uninsured employer, B & T

Contracting, Inc. (B & T) and Eakin Youngentob Associates, Inc.

(Eakin), as statutory employers, and the Uninsured Employer's

Fund, collectively referred to as the "employer," defended the

claim based on the commission's lack of jurisdiction.

Matamoros was an illegal alien when the injury occurred.

The employer moved to dismiss the claim, alleging that Matamoros

was an illegal alien and, therefore, was not an "employee" under

Code § 65.2-101. Citing Granados, the deputy commissioner

dismissed the claim for lack of jurisdiction. The full

commission affirmed.

- 2 - II. ANALYSIS

The claimants contend that the commission erred in applying

Granados retroactively. We disagree.

In Granados, the Supreme Court was asked to decide whether

an undocumented alien was an "employee" as defined in Code

§ 65.2-101. Granados, 257 Va. at 108, 509 S.E.2d at 290. The

Court noted that under the provisions of the United States

Immigration Reform and Control Act (IRCA) of 1986 an

undocumented alien could not lawfully contract for hire and,

therefore, could not satisfy the definition of "employee" under

the Virginia Workers' Compensation Act (Act). Id. at 108-09,

509 S.E.2d at 290.

The authority relied upon by the Supreme Court in reaching

its decision was in place well before the accidents that

occurred in either this case or the Granados case. The IRCA,

prohibiting illegal aliens from working in the United States,

has been in effect since 1986. See 8 U.S.C. § 1324(a).

Furthermore, the Act's definition of "employee," to-wit:

"[e]very person, including a minor, in the service of another

under any contract for hire," was the law in Virginia prior to

Matamoros' injury. Code § 65.2-101.

Granados neither overruled a prior judicial decision nor

established a new principle of law. It construed no new

statutory language. Therefore, it properly controls all

subsequent decisions.

- 3 - The claimants argue that Granados does not apply to them,

because, unlike the claimant in Granados, Matamoros did not

misrepresent his status as an illegal alien and Krajewski made

no inquiry as to that status. However, the decision in Granados

turned neither on the employee's misrepresentation nor on the

employer's inquiry. See Granados, 257 Va. at 108-09, 509 S.E.2d

at 293. Rather, the Supreme Court held, "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.

The decision of the commission is affirmed.

Affirmed.

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