IN THE MATTER OF THE WORKER'S COMPENSATION CLAIM OF: ADALBERTO GONZALEZ, Appellant (Petitioner/Claimant),
REIMAN CORP., Appellee (Respondent/Employer)
Appeal from the District Court of Laramie County. The Honorable Steven K. Sharpe, Judge.
For Appellant: James E. Gigax of Murr, Siler & Accomazzo, P.C., Denver, CO.
For Appellee: Raymond W. Martin and Jane M. France of Sundahl, Powers, Kapp & Martin, LLC, Cheyenne, WY.
Before HILL, DAVIS, FOX, and KAUTZ, JJ, and GOLDEN, J., Retired.
[¶1] Reiman Corp. (Reiman) hired Adalberto Gonzalez first in April 2007 and then again in 2008. In 2011, Mr. Gonzalez suffered a work related injury and filed an injury report with the Wyoming Workers' Compensation Division (Division). The Division denied benefits on the ground that Mr. Gonzalez failed to show that he was authorized to work in the United States, and Reiman and Mr. Gonzalez both appealed that decision to the Office of Administrative Hearings (OAH). During proceedings before the OAH, Mr. Gonzalez withdrew his objection to the Division's denial of benefits, but Reiman maintained its position that Mr. Gonzalez was an employee, as the Worker's Compensation Act defines that term, and was thus entitled to worker's compensation benefits.
[¶2] Following an evidentiary hearing, the OAH concluded that although Mr. Gonzalez had submitted fake work authorization documents, Reiman had a reasonable belief that Mr. Gonzalez was authorized to work in the United States when it hired him and Mr. Gonzalez was therefore an employee entitled to worker's compensation benefits. Mr. Gonzalez and the Division appealed that determination to the district court, contending the OAH erred in its interpretation of the term " employee" and that its ruling was unsupported by substantial evidence. The district court affirmed the OAH ruling, and Mr. Gonzalez appealed to this Court. We affirm.
[¶3] Mr. Gonzalez states the issues on appeal as follows:
A. Whether W.S. § 27-14-102(a)(vii)'s documentation-based " reasonable belief" can exist, at the time of hire, when the employer inspects no documents upon hire.
B. Whether W.S. § 27-14-102(a)(vii)'s " reasonable belief" in USICS-granted work permission can exist, when the employer possesses no USCIS documentation.
[¶4] Reiman first hired Mr. Gonzalez as a laborer in April 2007 to work on a project at Buffalo Creek between Dubois and Jackson, Wyoming. Dave Brown was the Reiman superintendant who hired Mr. Gonzalez, and during an initial hiring meeting with Mr. Gonzalez, they met in a job trailer at the Buffalo Creek work site. Mr. Brown had Mr. Gonzalez complete and sign or initial a number of documents, including an application for employment, a new hire/rehire report, a W-4 form, and a Form I-9.
[¶5] During their initial meeting, Mr. Gonzalez also presented work authorization documents to Mr. Brown, including a social security card and a permanent resident card. Mr. Brown did not make copies of those documents because the Buffalo Creek work site did not yet have electricity running to it to allow for the use of a copier. Mr. Gonzalez confirmed that he presented social security and permanent resident cards to Mr. Brown, but in the course of his worker's compensation dispute, Mr. Gonzalez admitted the documents he presented to Mr. Brown were fake. Mr. Brown did not know the documents were fake, and Mr. Gonzalez did not tell him they were fake.
[¶6] At some point in 2007, Dave Brown terminated Mr. Gonzalez's employment with Reiman. In April 2008, Leo Alvarado, another of Reiman's superintendants, rehired Mr. Gonzalez to work on Reiman projects in the Rock Springs/Rawlins area where Mr. Alvarado was superintendant. At that time, Reiman had a policy that allowed the rehire of a former employee without completion of hiring documents, including the Form I-9, if the employee was hired within six months of his last employment with Reiman. The policy, while it was in place, was intended to accommodate the rehiring of employees laid off due to weather-related work slowdowns. Pursuant to this policy, Mr. Gonzalez showed Mr. Alvarado a pay stub showing his recent employment with Reiman, but Mr. Alvarado did not require Mr. Gonzalez to complete any hiring documents or present work authorization documents. Mr. Alvarado explained that he took this approach pursuant to the Reiman rehire policy and because " all the paperwork was already at the office."
[¶7] Sometime after 2008, Reiman performed an audit of its employment files and discovered that a number of employees did not have a Form I-9 on file. To remedy the deficiency, Reiman's human resources manager informed each superintendant of the employees for whom Reiman did not have a Form I-9 on file and asked that the superintendants have those employees complete a new Form I-9. At the time of the audit and completion of the I-9s, Reiman was consulting with an immigration attorney who had advised against retaining copies of work authorization documents, such as social security cards and permanent residence cards. It was therefore Reiman's policy that the superintendants not make copies of the work authorization documents they reviewed in connection with the completion of the new I-9s.
[¶8] Mr. Gonzalez was one of the Reiman employees who did not have a Form I-9 on file, and in May 2010, superintendant Leo Alvarado had Mr. Gonzalez complete the form. At that time, Mr. Alvarado checked Mr. Gonzalez's social security card and permanent resident card and listed both documents and their numbers on the Form I-9. The cards Mr. Gonzalez presented to Mr. Alvarado were the same fake documents he had shown to Mr. Brown, and like Mr. Brown, Mr. Alvarado did not recognize that the documents were fake. The completed 2010 Form I-9 was dated May 12, 2010 and was signed by both Mr. Gonzalez and Mr. Alvarado.
[¶9] On August 30, 2011, Mr. Gonzalez was working on a bridge on I-80 when a wooden plank on which he was seated broke, causing him to fall about twenty feet to the concrete below and suffer serious injuries to his face and teeth, and to his right hand and arm. Mr. Gonzalez filed an injury report with the Wyoming Workers' Compensation Division (Division), and on September 29, 2011, the Division issued a final determination denying benefits. The Division denied benefits because Mr. Gonzalez had not submitted documentation of his residency and authority to work in the United States.
[¶10] Both Reiman and Mr. Gonzalez objected to the Division's final determination and requested a hearing. On November 22, 2011, the Division referred Mr. Gonzalez's claim to the Office of Administrative Hearings (OAH) for an evidentiary hearing. The OAH held an evidentiary hearing on April 9-10, 2013, and at the outset of the hearing, Mr. Gonzalez, through his counsel, notified the OAH that he was withdrawing his objection to the Division's final determination. Reiman maintained its position that Mr. Gonzalez was entitled to workers' compensation benefits.
[¶11] On August 14, 2013, the OAH issued its Findings of Fact, Conclusions of Law, and Order. The OAH concluded that Reiman reasonably believed that Mr. Gonzalez was authorized to work in the United States and Mr. Gonzalez was therefore an employee as that term is defined by the Wyoming Workers' Compensation Act. Based upon its findings and conclusions, the OAH overturned the Division's final determination denying benefits and ordered that the case be returned to the Division.
[¶12] On September 13, 2013, Mr. Gonzalez filed a petition for review in district court, and on November 12, 2013, the Division entered its ...