FOODMAKER INC v. WORKERS COMPENSATION APPEALS BOARD

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Court of Appeal, Second District, Division 1, California.

FOODMAKER, INC., et al., Petitioners, v. WORKERS' COMPENSATION APPEALS BOARD and Margalise Ortega-Ruiz, Respondents.

No. B116227.

Decided: October 06, 1998

Stockwell, Harris, Widom & Woolverton and William M. Carero, Los Angeles, for Petitioners. Tennenhouse & Minassian and Bita Adham for Respondent.

In this workers' compensation case, the employee suffered a disabling back injury that caused her to stop working for over two years.   She received periodic medical treatment.   Eventually, a physician concluded that the employee could work again if she complied with certain restrictions.   The employee wanted to return to her previous job.   The employer was able to modify the employee's job duties to accommodate her work restrictions.   However, before the employee returned, the employer learned for the first time that she was an illegal immigrant.   Under federal law, no one in the United States could lawfully employ her.   As a result, the employer did not offer her the modified job.

The employee filed a claim for vocational rehabilitation with the Workers' Compensation Appeals Board (“Board”).   The Board acknowledged that a similarly situated legal resident would not be entitled to any rehabilitation benefits other than the modified job with the employer.   Nevertheless, precisely because of the employee's illegal status, the Board ordered that she be trained for a new occupation in another country and that the employer bear up to $16,000 of the cost.

The employer contends that the Board's decision violates the equal protection clause of the United States Constitution because it discriminates on the basis of alienage and provides illegal immigrants with rehabilitation benefits that are more extensive and costly than those offered to similarly situated legal residents.   We agree.

BACKGROUND

In 1990, Margalise Ortega-Ruiz was hired by Foodmaker, Inc., to work at one of its Jack-in-the-Box restaurants in Santa Monica, California.   At that time, she provided Foodmaker with documents indicating she was a legal resident of the United States.  (See 8 U.S.C. § 1324a(a)(1)(B), (b).)   Ortega-Ruiz was employed as a food preparer.   Her job also included general cleaning.

On March 14, 1994, Ortega-Ruiz injured her lower back while trying to pick up a box of lettuce weighing 60 pounds.   She continued to work through March 24, 1994, her last day on the job.   Ortega-Ruiz obtained counsel and was referred to a physician, who placed her on disability.   For several months, she received therapy for lower back pain three times a week.

Shortly after sustaining the injury, Ortega-Ruiz filed a claim for workers' compensation benefits.   Foodmaker denied the claim on the ground that Ortega-Ruiz had not reported any industrial injury before her last day of work.   The parties decided to submit the dispute to an agreed medical examiner, Dr. Eugene Harris.   In his report, dated September 22, 1995, Dr. Harris advised that Ortega-Ruiz was precluded from work that involved “heavy lifting, repetitive bending or stooping.”   He found that Ortega-Ruiz was a “qualified injured worker,” making her eligible for vocational rehabilitation.  (See Lab.Code, §§ 4635, subd. (a), 4636, 4637, 4638, subd. (a).) 1

By letter dated November 27, 1995, Ortega-Ruiz requested that Foodmaker provide her with “vocational rehabilitation services,” which are “those services required to determine if an employee can reasonably be expected to return to suitable gainful employment and those services reasonably necessary to provide an employee with the opportunity to return to suitable gainful employment.”  (Lab.Code, § 4635, subd. (d).)  Such services “may include, but are not limited to, vocational and medical evaluation, counseling, job analysis, job modification assistance, retraining, including on-the-job training or training for alternative employment, formal training, academic instruction, and job placement assistance.”  (Ibid.)

If an employee is a “qualified injured worker,” and the employer offers her modified or alternative work consistent with her medical restrictions, the employer is not liable for any additional vocational rehabilitation benefits.  (See Lab.Code, §§ 4636, subd. (d), 4638, subd. (a), 4644, subds. (a)(5), (6).) 2  If the employer has neither modified work nor alternative work, the employee receives other rehabilitation services pursuant to a “vocational rehabilitation plan.”  (Lab.Code, §§ 4638, subd. (a).) 3  With certain exceptions, an injured employee is entitled to only one vocational rehabilitation plan, which should be completed within 18 months.  (Lab.Code, § 4644, subds. (c), (d), (e).)

According to Foodmaker, it had a modified job suitable for Ortega-Ruiz, but it could not lawfully employ her because she was an illegal immigrant.4  Under the federal Immigration Reform and Control Act of 1986 (Pub.L. No. 99-603, 100 Stat. 3359 (1986)), it is unlawful for anyone to employ a person known to be an “unauthorized alien.”  (8 U.S.C. § 1324a(a)(1)(A), (a)(2), (h)(3);  8 C.F.R. § 274a.1(a), (g), (h) (1998).)  “Unauthorized alien” includes an immigrant who is not lawfully admitted to the United States for permanent residence.  (8 U.S.C. § 1324a(h)(3);  8 C.F.R. § 274a.1(a) (1998).) 5

On January 29, 1996, CNA Insurance Company, Foodmaker's workers' compensation carrier, informed Ortega-Ruiz by letter that she was not eligible for vocational rehabilitation benefits because she was an “undocumented” worker.   In March 1996, the parties resolved Ortega-Ruiz's claim for workers' compensation benefits-except for the issue of rehabilitation-by way of a compromise and release in the amount of $18,000.

On May 29, 1996, Ortega-Ruiz presented her claim for vocational rehabilitation benefits to the Rehabilitation Unit of the Department of Industrial Relations, Division of Workers' Compensation (Rehabilitation Unit).  (See Lab.Code, §§ 110, subd. (b), 139.5, subd. (a), 3206.)   Foodmaker contested Ortega-Ruiz's request for vocational rehabilitation on the ground that she was an illegal immigrant.   On June 12, 1996, the Rehabilitation Unit found in favor of Ortega-Ruiz and ordered Foodmaker to commence vocational rehabilitation.

Foodmaker appealed the Rehabilitation Unit's determination, arguing that the decision discriminated between legal residents and illegal immigrants in violation of the equal protection clause of the United States Constitution.6  Foodmaker asserted that if Ortega-Ruiz had been a legal resident, her only rehabilitation benefit would have been an offer to continue working at Jack-in-the-Box in a modified job.   It follows, Foodmaker argued, that her status as an illegal immigrant should not entitle her to be trained for a new occupation.   Foodmaker claimed that the decision of the Rehabilitation Unit differentiated between employees on the basis of alienage and afforded more extensive and costly benefits to illegal immigrants than to similarly situated legal residents.

On May 30, 1997, Foodmaker's appeal was heard by Workers' Compensation Judge Maury Gentile.   The parties stipulated that Ortega-Ruiz had sustained an industrial injury on March 24, 1994, that “at all time[s] relevant to this matter [she] was in fact an illegal resident of the USA,” and that “she was never offered any employment by [Foodmaker] after her said industrial injury.”   Foodmaker made a written offer of proof to the effect that it had a modified job suitable for Ortega-Ruiz and that “the only impediment to supplying modified work within the capability of ․ Ortega-Ruiz and within the work restrictions imposed by the Agreed Medical Examiner was and is her failure to hold legal documents permitting employment in the United States․”   At the conclusion of the May 30, 1997 hearing, Judge Gentile took the matter under submission.

On July 9, 1997, Judge Gentile issued findings of fact and an opinion on decision, ruling in favor of Ortega-Ruiz.   Although Judge Gentile thought that Foodmaker's equal protection argument raised “a legitimate issue that apparently has not been answered by any case law known to the parties or this [court],” he nevertheless concluded that Ortega-Ruiz's status as an illegal immigrant did not disqualify her from receiving rehabilitation benefits.   As Judge Gentile pointed out, the Workers' Compensation Act (Lab.Code, § 3200 et seq.) expressly confers benefits on illegal immigrants:  The act defines “employee” as “every person in the service of an employer ․ whether lawfully or unlawfully employed, and includes:  [¶] ․ aliens ․”  (Lab.Code, § 3351, subd. (a), italics added;  see Royal Ins. Co. v. Workers' Comp. Appeals Bd. (1982) 48 Cal.Comp.Cases 104-105 [10 Cal.Workers' Comp.Rptr. 228-229] [illegal immigrant entitled to rehabilitation services];  Cabral v. State Bd. of Control (1980) 112 Cal.App.3d 1012, 1018, fn. 1, 169 Cal.Rptr. 604 [dis. opn. of Allport, J.] [illegal immigrants covered by workers' compensation].)

Foodmaker petitioned the Board for reconsideration, asserting that “[b]ecause it is unlawful to make [an offer of modified or alternative work] to an illegal alien, [Foodmaker] is saddled with the obligation to provide a vocational rehabilitation plan to an illegal alien where a similarly situated legal resident of the United States would be entitled to nothing more than return [ing] to the work place.  [¶] ․ [¶] Therefore, the illegal alien, because of [her] alien status, is entitled to [more extensive and costly] vocational rehabilitation benefits and services than a legal resident.”

Judge Gentile reviewed the petition for reconsideration and recommended that the Board deny it.   He acknowledged that “[t]he case herein presents an extremely interesting legal situation, and one of potentially great importance to [an employer] of the type herein who has many modified-work positions.”   Yet, he concluded that the Board was bound to follow California law, which grants rehabilitation benefits to illegal immigrants.   On August 29, 1997, the Board issued an opinion and order, adopting Judge Gentile's recommendation in a 2-1 vote.   Commissioner Robert Ruggles dissented on the ground that Ortega-Ruiz's status as an illegal immigrant should disqualify her from receiving vocational rehabilitation benefits.7

In October 1997, Foodmaker petitioned this court for a writ of review, which we summarily denied.   Foodmaker then petitioned the California Supreme Court for review.   On February 18, 1998, the Supreme Court granted the petition and transferred the matter to us with directions to issue a writ (S066465).   On June 16, 1998, by way of a writ of review, we directed the Board to provide us with a record of its proceedings, established a briefing schedule, and calendared the matter for oral argument.   Having considered the written and oral presentations of the parties, we now proceed to the merits of the case.

DISCUSSION

 “The [B]oard's interpretation of statutes involving the workers' compensation laws [is] ‘entitled to significant respect upon judicial review.’  ․” (Avalon Bay Foods v. Workers Comp. Appeals Bd. (1998) 18 Cal.4th 1165, 1174, 77 Cal.Rptr.2d 552, 959 P.2d 1228.)   Of course, we are not bound by the Board's conclusions with respect to questions of law.   (Barragan v. Workers' Comp. Appeals Bd. (1987) 195 Cal.App.3d 637, 642, 240 Cal.Rptr. 811;  Western Electric Co. v. Workers' Comp. Appeals Bd. (1979) 99 Cal.App.3d 629, 644, 160 Cal.Rptr. 436.)   An award of workers' compensation benefits should be annulled if the Board has acted in excess of its powers.  (Lab.Code, §§ 5952, subd. (a), 5953;  North Pacific S.S. Co. v. Soley (1924) 193 Cal. 138, 139-140, 223 P. 462;  McAdoo v. Industrial Acc. Com. (1919) 40 Cal.App. 570, 573-574, 181 P. 400.)   Plainly, that is the case where the Board's decision violates the Constitution.

A. Overview of the Workers' Compensation System

 “[T]he California Workers' Compensation Act provides for a compulsory scheme of employer liability without fault for injuries arising out of and in the course of employment․   The purpose of the act is to furnish ‘ “a complete system of [workers'] compensation, including full provision for such medical, surgical, hospital and other remedial treatment as is requisite to cure and relieve from the effects of such injury.” ’ ”  (Sea-Land Service, Inc. v. Workers' Comp. Appeals Bd. (1996) 14 Cal.4th 76, 85, 58 Cal.Rptr.2d 190, 925 P.2d 1309, citations omitted.)

“ ‘[M]edical treatment and disability indemnity are separate and distinct elements of compensation which fulfill different, though complementary, legislative goals.   Employer liability for medical and surgical services is provided in major part in order to facilitate the worker's speedy recovery and to maximize his [or her] productive employment․   Temporary disability indemnity is intended primarily to substitute for the worker's lost wages, in order to maintain a steady stream of income․   Permanent disability indemnity has a dual function:  to compensate both for actual incapacity to work and for physical impairment of the worker's body, which may or may not be incapacitating․’ ”  (Nickelsberg v. Workers' Comp. Appeals Bd. (1991) 54 Cal.3d 288, 294, 285 Cal.Rptr. 86, 814 P.2d 1328.) 8

 In general, an employer must provide vocational rehabilitation services to a “qualified injured worker” who requests them.  (Lab.Code, §§ 4635, subd. (a), 4636-4638, 4641.)  “The purpose of rehabilitation under the California Workers' Compensation Act is to restore an injured worker to suitable gainful employment following an industrial injury.   ‘Rehabilitation’ includes (1) those medical and paramedical techniques designed to get a disabled worker from the bed to the job, and (2) vocational training.   Thus, it involves both physical and vocational restoration.”  (2 Hanna, Cal. Law of Employee Injuries and Workers' Compensation (rev.2d ed.  1998) § 35.01, p. 35-8, fns. omitted.)

In attempting to return an injured employee to gainful employment, the workers' compensation system utilizes essentially three types of vocational rehabilitation plans:  (1) plans in which the employee is immediately employable;  (2) training plans;  and (3) self-employment.  “These are considered in a hierarchial manner, with immediate return-to-work the most preferred [and self-employment the least preferred].”  (Silberman & Wulz, Rehabilitation:  The California System, supra, at p. 261.)

There are four basic plans that involve immediate employability:  (a) modified work with the same employer, (b) alternative work with the same employer, (c) direct placement with another employer, and (d) on-the-job training.  (Silberman & Wulz, supra, at p. 261.)   When an employee is unable to obtain modified or alternative work with the same employer, direct placement with another employer is the most desirable option.  (Id. at p. 272.)   If direct placement is not a realistic solution, on-the-job training may be used.   On-the-job training is simply a form of direct placement in which “the employer is reimbursed for a portion of the cost of employment.  [It] is most appropriate when the injured worker has some but not all of the skills required for a particular job.   The employer is compensated for the training required.   However, the injured worker is providing some immediate benefit to the employer.”  (Id. at pp. 278-279.)

If an injured worker is not immediately employable, the workers' compensation system attempts to train the employee for a new occupation.  “This requires[, among other things,] the following:  [¶] (1) Prompt and adequate medical treatment [and] ․ [¶] (2) Vocational training, counseling, and guidance of the worker ․ in order to prepare and adapt the worker to a new job or trade and a new work environment.”  (2 Hanna, Cal. Law of Employee Injuries and Workers' Compensation, supra, § 35.01, p. 35-8, fns. omitted.)

Vocational training often goes hand in hand with academic instruction (Lab.Code, § 4635, subds. (d), (e)), especially since the Legislature has “declare[d] its intent to encourage the implementation of vocational rehabilitation services at community colleges” (id., § 4635.1, subd. (b)).9  “The employee shall also receive additional living expenses necessitated by the vocational rehabilitation services ․ at the expense of the employer․”  (Lab.Code, § 139.5, subd. (c).)  When deemed appropriate by the Rehabilitation Unit, the employer must pay for an employee's transportation, relocation, tools, and equipment.  (See Rehabilitation Unit Guidelines Nos. 8-50-04.1 to 8-50-04.3.) The total cost of an employee's vocational rehabilitation benefits, excluding temporary disability payments, cannot exceed $16,000.  (Lab.Code, § 139.5, subd. (c).) 10

To ensure the success of a rehabilitation plan, the Board must necessarily consider the circumstances of each case.   By way of example, in The Lodge at Pebble Beach v. Workers' Comp. Appeals Bd. (1985) 50 Cal.Comp.Cases 665, the Board approved a rehabilitation plan that permitted a bookkeeper to attend college for two years so that she could become a social worker.   In County of Los Angeles v. Workers' Comp. Appeals Bd. (1984) 49 Cal.Comp.Cases 569, the Board approved a plan that allowed a county health inspector to attend a gourmet cooking school in France with the objective of her becoming a gourmet chef and caterer.   The employee was required to pay for her transportation to, and lodging in, France.   And in Zenith Ins. Co. v. Workers' Comp. Appeals Bd. (1997) 62 Cal.Comp.Cases 555, the applicant, a landscaper, was offered but rejected plans that would have allowed him to become a food handler/restaurant worker or an electronic assembly worker.   Instead, he selected a plan that permitted him to expand his preexisting dairy farm in Mexico.   The Board approved the chosen plan, which provided the employee with $11,000 to purchase additional equipment for the farm.11

B. Equal Protection Standard of Review

 “ ‘[T]he equal protection clause requires that those similarly situated not be treated differently unless the disparity is justified.’  ․ [¶] In considering an equal protection challenge, ‘we must first determine the appropriate standard of review․   The proper standard of review ․ depends upon the classification involved in, and interests affected by, the challenged law.’ ”  (Kenneally v. Medical Board (1994) 27 Cal.App.4th 489, 495, 32 Cal.Rptr.2d 504.)

“At a minimum, a statutory classification must be rationally related to a legitimate governmental purpose․   Classifications based on race or national origin ․ and classifications affecting fundamental rights ․ are given the most exacting scrutiny.   Between these extremes of rational basis review and strict scrutiny lies a level of intermediate scrutiny, which generally has been applied to discriminatory classifications based on sex or illegitimacy.”   (Clark v. Jeter (1988) 486 U.S. 456, 461, 108 S.Ct. 1910, 100 L.Ed.2d 465, citations omitted;  accord, Kenneally v. Medical Board, supra, 27 Cal.App.4th at pp. 495-496 & fn. 4, 32 Cal.Rptr.2d 504.)

 In determining the level of scrutiny applicable to classifications based upon alienage, the courts focus on the characteristics of the disadvantaged group.   If a state discriminates against legal immigrants by favoring other legal residents, the classification is subject to heightened scrutiny.  “[C]lassifications based on alienage, like those based on nationality or race, are inherently suspect and subject to close judicial scrutiny.”  (Graham v. Richardson (1971) 403 U.S. 365, 371-372, 91 S.Ct. 1848, 29 L.Ed.2d 534, citations and fns. omitted;  accord, Cleburne v. Cleburne Living Center, Inc. (1985) 473 U.S. 432, 439-440, 105 S.Ct. 3249, 87 L.Ed.2d 313.)  “As a general matter, a state law that discriminates on the basis of alienage can be sustained only if it can withstand strict judicial scrutiny․  [T]o withstand strict scrutiny, the law must advance a compelling state interest by the least restrictive means available.”   (Bernal v. Fainter (1984) 467 U.S. 216, 219, 104 S.Ct. 2312, 81 L.Ed.2d 175.)   In short, “[l]egal aliens ․ [are] a suspect class afforded the protection of strict scrutiny․”  (People v. Arciga (1986) 182 Cal.App.3d 991, 1001-1002, 227 Cal.Rptr. 611.)

 On the other hand, if a state treats illegal immigrants less favorably than legal residents, the equal protection analysis is more deferential.   This is not to say that illegal immigrants fall outside the scope of the equal protection clause:  “[T]he protection of the Fourteenth Amendment extends to anyone, citizen or stranger, who is subject to the laws of a State, and reaches into every corner of a State's territory.   That a person's initial entry into a State, or into the United States, was unlawful, and that he may for that reason be expelled, cannot negate the simple fact of his presence within the State's territorial perimeter.   Given such presence, he is subject to the full range of obligations imposed by the State's civil and criminal laws.   And until he leaves the jurisdiction-either voluntarily, or involuntarily in accordance with the Constitution and laws of the United States-he is entitled to the equal protection of the laws that a State may choose to establish.”  (Plyler v. Doe (1982) 457 U.S. 202, 215, 102 S.Ct. 2382, 72 L.Ed.2d 786.)

Nevertheless, a state classification that disfavors illegal immigrants is not analyzed under a standard of strict scrutiny.   As the United States Supreme Court has stated:  “We reject the claim that ‘illegal aliens' are a ‘suspect class.’   No case in which we have attempted to define a suspect class ․ has addressed the status of persons unlawfully in our country.   Unlike most of the classifications that we have recognized as suspect, entry into this class, by virtue of entry into this country, is the product of voluntary action.   Indeed, entry into the class is itself a crime.”   (Plyler v. Doe, supra, 457 U.S. at p. 219, fn. 19, 102 S.Ct. 2382.)

 Accordingly, with respect to state classifications that single out illegal immigrants for disparate treatment, “the Equal Protection Clause operates ․ [as it would] to protect anyone ‘within [the State's] jurisdiction’ from the State's arbitrary action.”  (Plyler v. Doe, supra, 457 U.S. at p. 224, fn. 21, 102 S.Ct. 2382, italics added.)   Put another way, a classification that disfavors illegal immigrants must be rationally related to a legitimate state interest.  (American G.I. Forum v. Miller (1990) 218 Cal.App.3d 859, 868 & fn. 4, 267 Cal.Rptr. 371;  People v. Sanchez (1987) 190 Cal.App.3d 224, 229, 235 Cal.Rptr. 264;  see generally State, Dept. of Revenue v. Cosio (Alaska 1993) 858 P.2d 621, 626-627.) 12

 In the present case, Foodmaker contends that the state is requiring employers to provide illegal immigrants with rehabilitation benefits that are more extensive and costly than those offered to similarly situated legal residents.   Arguably, in these circumstances, the state's decision should be subject to some form of heightened judicial scrutiny in order to protect the rights of legal residents.   However, we need not resolve this question because the Board's decision fails even under the “rational basis” test.

C. Illegal Immigrants and Modified Work

As a preliminary matter, we think it important to state the question before us:  Where an employee has sustained a work-related injury and, consistent with medical advice, could return to work in a modified or alternative job, but cannot do so solely because she is an illegal immigrant, can the Board require the employer to provide her with rehabilitation benefits that are more extensive and costly than those offered to a similarly situated legal resident?   It would seem that to ask this question is to answer it.

In any event, it is equally important to make clear what we are not deciding.   Foodmaker does not contend that the Workers' Compensation Act excludes illegal immigrants from coverage.  (See generally Lab.Code, § 3351, subd. (a);  Mendoza v. Monmouth Recycling Corp. (1996) 288 N.J.Super. 240, 246-249, 672 A.2d 221, 224-226;  Reich, Public Benefits for Undocumented Aliens:  State Law Into the Breach Once More (1991) 21 N.M. L.Rev. 219, 239-241.)   Further, we do not decide or suggest that illegal immigrants are never entitled to vocational rehabilitation benefits.  (See Royal Ins. Co. v. Workers' Comp. Appeals Bd., supra, 48 Cal.Comp.Cases at pp.   104-105 [10 Cal.Workers' Comp.Rptr. at pp. 228-229];  Ramirez v. Won's Market (1985) 82 L.B. 122-367, 13 Cal.Workers' Comp.Rptr. 94;  2 Hanna, Cal. Law of Employee Injuries and Workers' Compensation, supra, § 35.30[4], pp. 35-41 to 35-42.)   The question before us is more narrow:  whether an illegal immigrant is entitled to more extensive and costly benefits than a similarly situated legal resident.   Finally, Foodmaker does not argue that the Immigration Reform and Control Act of 1986 or any other federal statute preempts a state's decision to award workers' compensation benefits to illegal immigrants.  (See Dowling v. Slotnik (1998) 244 Conn. 781, 712 A.2d 396.) 13

In deciding whether the Board's decision in this case is rationally related to a legitimate state interest, it is necessary to understand the importance of modified and alternative employment in the context of vocational rehabilitation.   While vocational rehabilitation may range from an offer of modified work, on the one hand, to training and academic instruction for a new occupation, on the other, the workers' compensation system is most effective when the employee can return to work with her previous employer in a modified or alternative job.

“Modified work in the prior job is usually the best solution when possible.   The injured worker retains the wages, working conditions, and hours of his prior employment and remains in a job that is familiar to him․   The employer benefits by retaining an employee who is already trained in the job, knows the company and product, and has proven his reliability in the past.   In addition, the employer will get a rebate from the insurance company on the workers' compensation costs for that employee after 12 months.”  (Silberman & Wulz, Rehabilitation:  The California System, supra, at pp. 264-265;  see Lab.Code, § 4638, subd. (a) [employer entitled to premium refund where injured employee returns to modified or alternative job for 12 months].)  “The California Workers' Compensation Institute reported in 1990 that the least expensive and most cost-effective form of rehabilitation is modified or alternate employment.   Seventy-five percent of those who participated in this type of plan returned to suitable gainful employment.”  (Durkee, California's Vocational Rehabilitation System Within Workers' Compensation:  Past, Present & Future (July 1996) Cal. Workers' Compensation Enquirer at p. 34.)

“The literature has consistently stated that modified and alternate employment is the most effective method to accomplish vocational rehabilitation goals and to lower the costs of providing services․  [¶] ․ [¶] ․ The assumption should be that modified employment can be developed through eliminating nonessential tasks that exacerbate the worker's injury and/or restructur[ing] essential tasks so they fit within the injured worker's physical abilities.”  (Durkee, California's Vocational Rehabilitation System Within Workers' Compensation:  Past, Present & Future (Aug.1996) Cal. Workers' Compensation Enquirer at pp. 36-37.)   The interests of the injured worker, the employer, and the workers' compensation system are best served when an offer of modified or alternative work is made and accepted.   The success of vocational rehabilitation rests in large part on making appropriate use of modified and alternative work.14

In concluding that Foodmaker had to provide Ortega-Ruiz with vocational rehabilitation services other than an offer of modified work, the Rehabilitation Unit relied on one of its administrative guidelines, No. 8-10-01.   That guideline states in part:

“The Rehabilitation Unit is to insure that [u]ndocumented workers shall be treated like all other workers involved in the Workers' Compensation Rehabilitation system.   However, offers of modified work, alternate work or job placement assistance shall not be provided unless the employee has met the federal requirements to establish work eligibility in the United States.

“․

“The Unit Consultant shall require any [rehabilitation] plan developed for an undocumented worker ․ [to] address all services required to restore the injured worker's employability, including, but not limited to, necessary training, job-seeking skills, labor market assessment and additional living expenses․

“The Unit does not have jurisdiction to determine an employee's work eligibility.   However, it does have [the] responsibility to determine the need for, kind of and practicality of vocational rehabilitation services.

“Where there is a dispute regarding an employee's legal entitlement to work in the United States, which cannot be resolved among the parties, the Unit Consultant will not order the provision of placement services, utilization of modified/alternate work with the pre-injury employer, development of an on-the-job training [program] or self-employment in the United States, pending resolution of residency status by the appropriate agency or agencies.

“Upon the request of an undocumented Qualified Injured Worker, a plan providing for vocational rehabilitation services in the injured worker's native country may be developed with agreement of the parties.   When a dispute develops, the consultant will consider the positions of the parties and determine the most appropriate services.   For [injuries sustained on or after] 1/1/94, the Unit's determination shall consider the cost effectiveness of out-of-state services․”  (Italics added.)

Consistent with the Immigration Reform and Control Act of 1986 (“IRCA”), guideline No. 8-10-01 recognizes that the workers' compensation system should not seek to rehabilitate an illegal immigrant for re-employment in the United States.   The guideline expressly prohibits an offer of modified or alternative work.   Nor are placement services or on-the-job training to be provided.15  Still, the guideline does contemplate that a rehabilitation plan may go forward with respect to “necessary training, job-seeking skills, labor market assessment and traditional living expenses”-services that prepare an employee for a new occupation outside the United States and which are therefore permissible under IRCA. The rehabilitation plan could also include academic instruction.  (See Lab.Code, § 4635, subd. (e).)  As with any other plan, the employer would be liable for up to $16,000 in benefits.  (See Lab.Code, § 139.5, subd. (c).)

In light of the purpose of the workers' compensation system and the manner in which vocational rehabilitation operates, we fail to see how the Board's decision in this case is rationally related to a legitimate state interest.   Throughout the workers' compensation proceedings, Foodmaker stated that it would have provided Ortega-Ruiz with a modified job but for the fact that she was an illegal immigrant.   Of course, an offer of modified employment terminates an employer's liability for further vocational rehabilitation services.  (See Lab.Code, §§ 4636, subd. (d), 4638, subd. (a), 4644, subd. (a)(5).)   Yet, precisely because of Ortega-Ruiz's illegal status, the Board ordered Foodmaker to train her for a new occupation.   Catch-22.

The logic of the Board's decision escapes us.   Foodmaker was unable to offer Ortega-Ruiz a modified job because she had violated the law by residing in this country and because Foodmaker was complying with the law by not putting her back to work.   Simple fairness dictates that Ortega-Ruiz not receive any vocational rehabilitation services, much less a range of services, if those benefits are being provided just because she entered the country illegally.  (See Civ.Code, § 3517 [“No one can take advantage of his own wrong.”].)

Further, while the cost to an employer of providing a modified job is often minimal, the cost of providing training and additional rehabilitation services may run as high as $16,000.  (See Lab.Code, §§ 4638, subd. (a), 139.5, subd. (c).)  Here, absent her illegal status, Ortega-Ruiz would have returned to a modified job at Jack-in-the-Box, and Foodmaker would have received a premium refund for bringing her back to work.  (See Lab.Code, § 4638, subd. (a).)  Instead, under the Board's decision, Ortega-Ruiz's status as an illegal immigrant means that Foodmaker will incur a substantial cost in training her for a new occupation.

Thus, the Board's decision undermines the efficacy of vocational rehabilitation by placing certain “qualified injured workers” (i.e., illegal immigrants) into expensive, lengthy rehabilitation plans when, under the criteria set forth in the Workers' Compensation Act, they should not be there.16  Indeed, given that employers cannot lawfully provide modified or alternative work to any illegal immigrant, the Board's position would require that all illegal immigrants be trained for a new occupation.   Obviously, if rehabilitation benefits were awarded in this way, the Board would fail to give due consideration to each worker's particular experience, skills, and injury.  (See Lab.Code, § 4638, subd. (a);  see also id., § 4635, subds. (d), (e), (f);  see generally 2 Hanna, Cal. Law of Employee Injuries and Workers' Compensation, supra, §§ 35.30[1]-35.31[1][c], pp. 35-39 to 35-48.)   As a result, a range of vocational rehabilitation benefits would be awarded to a class of workers based on a single criterion-illegal residency-which bears no relation to the need for such benefits.17

Moreover, we note that the workers' compensation system is designed to (1) provide an employee with quick, limited compensation for an injury, (2) insulate the employer from tort liability for work-related injuries, (3) shift the cost of industrial injuries to the cost of the goods produced, and (4) encourage workplace safety.  (State Compensation Ins. Fund v. Brown (1995) 32 Cal.App.4th 188, 199, 38 Cal.Rptr.2d 98.)   The Board's decision in this case does not advance those objectives.   Rather, it forces an employer to incur unnecessary expenses for misdirected vocational rehabilitation.   It provides an illegal immigrant with extensive rehabilitation benefits that are out of proportion to her injury.   And it will do nothing to quell the misconception by many employees that vocational rehabilitation “will improve their careers and [allow them to] make more money than what they made before their injury.”  (Durkee, California's Vocational Rehabilitation System Within Workers' Compensation:  Past, Present & Future (Aug.1996) Cal. Workers' Compensation Enquirer at p. 37.)

Finally, “ ‘the equal protection clause requires that those similarly situated not be treated differently unless the disparity is justified.’  ․” (Kenneally v. Medical Board, supra, 27 Cal.App.4th at p. 495, 32 Cal.Rptr.2d 504;  accord, Romer v. Evans (1996) 517 U.S. 620, 631-635, 116 S.Ct. 1620, 134 L.Ed.2d 855.)   A legal resident who incurs a work-related back injury and an illegal immigrant who suffers the same fate are similarly situated for purposes of workers' compensation.   There is no rational basis or justification for providing the illegal immigrant with more extensive rehabilitation benefits.   If an employer would have offered the illegal immigrant a modified or alternative job but for her illegal status, the employer is not liable for any additional rehabilitation services.   The fact that an employer cannot lawfully employ an illegal immigrant in a modified or alternative job does not mean the Board should award her other rehabilitation benefits just for the sake of giving her something.18

In closing, we leave it to the Board to decide how it will determine an employer's reason for not offering modified or alternative work to an illegal immigrant.   If this case is any example, employers will probably forgo offering an illegal immigrant a modified job since the employer cannot lawfully allow her to accept it.   Mostly likely, the employer will simply inform the Board that no offer was made.   The Board (or its designee) will then have to decide whether the employer would have actually made an offer of modified or alternative work had the employee been a legal resident.   That determination remains to be made in this case as well since Foodmaker's arguments up to this point have been based on an offer of proof.

DISPOSITION

The Workers' Compensation Appeals Board's opinion and order of August 29, 1997, adopting the Workers' Compensation Judge's “Response and Recommendations Regarding Petition for Reconsideration” and denying reconsideration, is annulled with directions to conduct further proceedings to determine whether Foodmaker, Inc., would have offered Margalise Ortega-Ruiz modified or alternative employment (Lab.Code, § 4644, subds. (a)(5), (6)) but for her status as an illegal immigrant.

FOOTNOTES

1.   A “qualified injured worker” is an employee who meets two requirements.   First, “[t]he employee's expected permanent disability as a result of the injury, whether or not combined with the effects of a prior injury or disability, if any, permanently precludes, or is likely to preclude, the employee from engaging in his or her usual occupation or the position in which he or she was engaged at the time of injury․”  (Lab.Code, § 4635, subd. (a)(1).)   Second, “[t]he employee can reasonably be expected to return to suitable gainful employment through the provision of vocational rehabilitation services․”  (Id., subd. (a)(2).)

2.   In performing “modified” work, an employee remains in the same job with the same employer, but her duties, shifts, location, use of equipment, or other job components are changed to the extent necessitated by her medical restrictions.  (Silberman & Wulz, Rehabilitation:  The California System (5th ed.1992) 264-265.)   The employer must offer modified work to the injured employee for at least one year, or she will be eligible for additional rehabilitation services.  (Lab.Code, § 4644, subds. (a)(5), (f).)  “Alternative” work is a job, other than modified work, with the same employer which is consistent with the employee's medical restrictions.   The employee must be able to perform the essential functions of the alternative job.  (Silberman & Wulz, supra, at pp. 270-272;  Lab.Code, § 4644, subd. (a)(6).)   Alternative work must also be offered for a one-year period, or the employee will be eligible for other rehabilitation services.  (Lab.Code, § 4644, subds. (a)(6)(B), (f).)

3.   A “vocational rehabilitation plan” is “the written description of and rationale for the manner and means by which it is proposed that a qualified injured worker may be returned to suitable gainful employment.   The plan may contemplate direct job placement assistance, on-the-job training, formal training, academic instruction, job placement assistance, or self-employment․   The plan may contemplate modification of the employee's occupation at the time of injury or provision for alternative work if the employer has initially failed or refused to provide modified or alternative work to the injured worker.”  (Lab.Code, § 4635, subd. (e).)

4.   Foodmaker did not learn that Ortega-Ruiz was an illegal immigrant until after she was injured on the job.   Typically, an illegal immigrant will disclose her residency status to a rehabilitation counselor (or “qualified rehabilitation representative”) during the routine processing of a claim for rehabilitation benefits.  (See Silberman & Wulz, Rehabilitation:  The California System, supra, at pp. 129-134, 190, 374-375;  see also Lab.Code, §§ 4635, subd. (b), 4637, subd. (a), 4638, subd. (a).)

5.   An employer is assessed a civil monetary penalty for each illegal immigrant it employs.  (8 U.S.C. § 1324a(e)(4).)   A pattern or practice of violations may lead to criminal fines and imprisonment.  (Id., § 1324a(f)(1).)   The act authorizes these sanctions if the employer hires or continues to employ a person knowing that she is or has become an illegal immigrant.  (Id., § 1324a(a)(1)(A), (a)(2), (e)(4), (f)(1).)  For convenience, we will not refer to the scienter requirement in discussing the act's prohibitions.

6.   The Fourteenth Amendment to the Constitution provides that “[n]o State shall ․ deny to any person within its jurisdiction the equal protection of the laws.”

7.   In ordering Foodmaker to provide benefits, the Rehabilitation Unit commented that Foodmaker had not notified Ortega-Ruiz about the availability of modified or alternative work, nor had it notified her that she might qualify for rehabilitation benefits.  (See Lab.Code, §§ 4636, 4637.)   However, in finding that Ortega-Ruiz was entitled to vocational rehabilitation, Judge Gentile stated that he was not reaching the notification issue.   The Board did not reach it either.   Nor shall we.

8.   “Temporary disability indemnity ․ cease[s] when the employee returns to work or is deemed medically able to return to work, or when the employee's medical condition becomes permanent and stationary․  [¶] Once the employee's condition has become permanent and stationary, he or she is entitled to permanent disability indemnity․   Because an injured worker cannot be temporarily and permanently disabled at the same time, permanent disability payments do not begin until [temporary disability] payments cease.”  (Ritchie v. Workers' Comp. Appeals Bd. (1994) 24 Cal.App.4th 1174, 1179-1180, 29 Cal.Rptr.2d 722, citation omitted.)

9.   In 1990, the California Workers' Compensation Institute reported that modified work and alternative work were utilized in only 13 percent of vocational rehabilitation plans, while school plans, which were the most expensive and least effective, were used 53 percent of the time.  (Durkee, California's Vocational Rehabilitation System Within Workers' Compensation:  Past, Present & Future (July 1996) Cal. Workers' Compensation Enquirer at pp. 34-35.)

10.   We need not dwell on rehabilitation services involving self-employment because that type of plan is not pertinent in this case.   Suffice it to say that “[s]elf-employment plans are the rarest of all types of vocational plans.   They generally involve the highest risk with respect to ensuring ‘suitable gainful employment’ and require a higher degree of independence and self-reliance than any other plan.   Thus, they are only recommended when no other alternatives are available.”  (Silberman & Wulz, Rehabilitation:  The California System, supra, at pp. 287-288.)

11.   Because this case concerns vocational rehabilitation benefits, our discussion focuses on employees who are eligible to receive those benefits, i.e., “qualified injured workers.”  (See Lab.Code, §§ 4635, subds. (a), (e), 4636, 4638;  see also fn. 1, ante.)   We therefore use the terms “employee” and “worker” to refer to individuals who are “qualified injured workers.”   Unless the context indicates otherwise, the term “illegal immigrant” also refers to an individual who is a “qualified injured worker.”

12.   Because Congress has constitutional authority to make distinctions and classifications regarding immigration, courts usually apply a “rational basis” test in determining the validity of congressional action with respect to alienage.  (See U.S. v. Phetchanphone (D.Utah 1994) 863 F.Supp. 1543, 1545-1548.)

13.   To qualify for vocational rehabilitation, an employee must be, among other things, “vocationally feasible,” i.e., reasonably expected to return to “suitable gainful employment” by participating in rehabilitation services.  (Lab.Code, § 4635, subd. (a)(2).)  “Suitable gainful employment” means “employment or self-employment which is reasonably attainable and which offers an opportunity to restore the employee as soon as practicable and as near as possible to maximum self-support․”   (Id., subd. (f).)  Foodmaker contends that, because Ortega-Ruiz cannot be lawfully employed in the United States, she is not vocationally feasible.   We disagree.   Nothing in the Workers' Compensation Act restricts an injured employee's potential job market to this country.   Moreover, the Board has held that rehabilitation services for an immigrant may be tailored to the job market in her native country.  (See Royal Ins. Co. v. Workers' Comp. Appeals Bd., supra, 48 Cal.Comp.Cases at pp. 104-105, 10 Cal.Workers' Comp.Rptr. at pp. 228-229;  see also Rehabilitation Unit Administrative Guidelines No. 8-10-01 [discussing development of rehabilitation plan that utilizes vocational services in employee's native country];  Lab.Code, § 4644, subd. (g) [discussing utilization of vocational rehabilitation services outside California].)

14.   Under Labor Code section 4643, an injured employee has a duty to “cooperate” in the development, implementation, and completion of a vocational rehabilitation plan.   Foodmaker argues that Ortega-Ruiz failed to cooperate simply by being an illegal immigrant.   This is a non sequitor.   Ortega-Ruiz's status as an illegal immigrant, without more, does not amount to noncooperation.   It would make little sense for the Workers' Compensation Act to expressly provide coverage for illegal immigrants (see Lab.Code, § 3351, subd. (a)) if their residency status alone were grounds for denying benefits.

15.   Training an illegal immigrant on the job, which would expose an employer to liability under IRCA, must be distinguished from other forms of job training that do not violate the act.

16.   The act states that a vocational rehabilitation plan should give appropriate weight to “the employee's qualifications, likely permanent disability, vocational interests and aptitudes, preinjury earnings and future earning capacity, and the present and projected labor market.”  (Lab.Code, § 4635, subd. (f);  see id., subd. (e).)

17.   Our discussion is limited to situations where an illegal immigrant would receive more extensive and costly vocational rehabilitation benefits than those offered to a similarly situated legal resident.   We do not suggest that an illegal immigrant should be denied rehabilitation services (e.g., training for a new occupation) if she would receive those benefits regardless of her status as an illegal immigrant.

18.   There is no evidence that Foodmaker violated IRCA in employing Ortega-Ruiz.   As stated, Foodmaker did not know that Ortega-Ruiz was an illegal immigrant until after she injured her back-more than three years after she was hired and shortly after she ceased employment.   Consequently, the parties have not discussed the effect, if any, of an IRCA violation on an illegal immigrant's receipt of workers' compensation benefits.   We express no opinion on the subject.

MASTERSON, Associate Justice.

ORTEGA, Acting P.J., and MIRIAM A. VOGEL, J., concur.