                 IN THE SUPREME COURT OF THE STATE OF IDAHO
                                Docket No. 45415

ELFEGO MARQUEZ,                          )
                                         )
      Claimant-Respondent,               )
                                         ) Boise, May 2018 Term
 v.                                      )
                                         ) Filed: August 3, 2018
 PIERCE PAINTING, INC., Employer, and )
 STATE INSURANCE FUND, Surety,           ) Karel A. Lehrman, Clerk
                                         )
      Defendants-Appellants.             )
                                         )
________________________________________ )

       Appeal from the Industrial Commission of the State of Idaho.

       The order of the Commission is reversed and this case is remanded for
       further proceedings consistent with this Opinion.

       Cantrill Skinner Lewis Casey & Sorensen, LLP, Boise, for appellants.
       Clinton O. Casey argued.

       Racine Olson Nye & Budge, Chartered, Pocatello, and Middleton Law,
       PLLC, Middleton, for respondent. James C. Arnold argued.
                     _______________________________________________

BEVAN, Justice.
       Elfego Marquez (“Marquez”) sustained an impairment from an industrial accident while
employed at Pierce Painting, Inc. (“Pierce Painting”). Marquez subsequently filed a workers’
compensation complaint. Pierce Painting through its surety, the State Insurance Fund (“SIF”), paid
Marquez’s medical bills, total temporary disability benefits, and permanent partial impairment
benefits. SIF did not pay Marquez’s permanent disability benefits, claiming that Marquez was not
eligible for permanent disability due to his status as an undocumented immigrant. The Industrial
Commission (the “Commission”) disagreed and ordered that Marquez was entitled to pursue a claim
for permanent disability without reference to his status as an undocumented immigrant. Pierce
Painting and SIF appeal the order of the Commission. We reverse.




                                                1
                                   I. FACTS AND PROCEDURE
       Marquez was born in 1970 and is a citizen of Mexico. He received a university degree in
Mexico where he became a teacher and taught first and third year elementary school for seven years.
In approximately 2000, Marquez illegally immigrated from Mexico to the United States. After
entering the United States, Marquez went to southern California, where he purchased a social
security card and used it to obtain employment washing dishes at a restaurant. After working in
California for approximately seven months, Marquez moved to Emmett, Idaho and soon after began
working at Pierce Painting. Marquez’s primary job at Pierce Painting was to prepare buildings to be
painted. He was able to work at Pierce Painting by providing the social security card he purchased
in California. Pierce Painting knew Marquez was an undocumented immigrant and that his social
security card was not legally issued to him. Not long after beginning at Pierce Painting, a supervisor
received a notice of garnishment associated with the social security number used by Marquez.
Evidently, the individual to whom the social security number had been legally issued had an
outstanding child support delinquency. The supervisor instructed Marquez to obtain a different social
security card. Marquez complied by illegally obtaining a different social security card.
       On May 20, 2010, Marquez sustained an impairment from an industrial accident while
preparing a building to be painted. Marquez was standing on two five gallon buckets stacked on top
of each other to reach an area above a tall doorway when he fell onto a concrete floor fracturing his
right wrist and injuring his right arm and shoulder. His right wrist was put into a cast and he
eventually underwent multiple right shoulder surgeries performed by Dr. Hassinger. Dr. Hassinger
rated Marquez’s right shoulder impairment at 5% of the whole person. He recommended permanent
restrictions on overhead activities and that Marquez not return to his position at Pierce Painting.
       In July of 2010, Marquez was referred to the Industrial Commission Rehabilitation Division
(“ICRD”) by SIF. ICRD consultant Ken Halcomb (“Halcomb”) was assigned to Marquez’s case.
ICRD’s primary objective was to preserve Marquez’s time-of-injury job and to return him to that job
following his recovery. This required Halcomb to meet with an agent of Pierce Painting, and then
with Marquez. Halcomb interviewed Marquez about his education, past work history, and
transferable job skills. Notably, the interview did not include questions about Marquez’s
immigration status. When it became evident that Marquez would not be able to return to his time-of-
injury job, Halcomb assisted Marquez in identifying other potential employment opportunities
consistent with his restrictions and within his geographic area. Ultimately Halcomb closed

                                                  2
Marquez’s file without placing him with another employer. Halcomb never learned that Marquez
was an undocumented immigrant. Marquez was then referred to the Idaho Department of Labor for
additional placement services.
       Marquez received substantial benefits under the Workers’ Compensation Act for his injuries.
SIF paid $87,526.64 for medical bills, $30,985.87 for total temporary disability benefits, and
$8,487.60 for permanent partial impairment benefits. Marquez then sought permanent disability
benefits in excess of his impairment because his post-accident medical restrictions excluded him
from a significant portion of the undocumented immigrant labor market in Idaho. SIF refused to pay
Marquez any permanent disability benefits because of his status as an undocumented immigrant.
       On April 14, 2015, Marquez filed a workers’ compensation complaint against Pierce Painting
and SIF (“the appellants”) seeking permanent disability benefits in excess of his impairment. On
May 1, 2015, Marquez filed an amended workers’ compensation complaint. The appellants filed
answers to both Marquez’s original and amended complaints denying that Marquez was entitled to
any permanent disability benefits. On July 28, 2016, the parties stipulated to the following:
       1. Marquez is not legally in the United States.
       2. Marquez had no legal access to the Idaho or United States labor market.
       3. Marquez sustained an industrial injury on May 20, 2010.
       4. Marquez injured his right wrist and right shoulder in the industrial accident on May 20,
          2010.
       5. The appellants have paid Marquez’s medical bills and permanent partial impairment in
          full.
       6. The only dispute is whether Marquez is entitled to permanent disability in excess of his
          impairment.

       On July 28, 2016, a hearing was held before a Referee. The sole issue presented at the
hearing was whether Marquez was entitled to permanent disability benefits. Marquez was a witness
at the hearing and spoke through an interpreter. Halcomb also testified before the Referee. He noted
that since it is the purpose of the ICRD to return injured workers to their time-of-injury job, or
failing that, to some other suitable job in their geographic area, it is ICRD policy that such placement
services cannot be offered to undocumented workers. Halcomb further acknowledged that there is a
labor market for undocumented workers in the Treasure Valley; however, he was unable to
characterize the size and components of that labor market. Halcomb did confirm that Marquez’s




                                                   3
access to the labor market is limited because of both his undocumented immigration status and the
permanent effects of his work injury.
       On May 1, 2017, the Referee issued his written recommendation. The Referee found
Marquez’s undocumented immigration status precluded him from receiving permanent disability
benefits. In doing so, the Referee relied upon two prior cases from the Commission that supported
his conclusion. See Otero v. Briggs Roofing Company, 2011 WL 4429193 (Idaho Ind. Com.); and
Diaz v. Franklin Building Supply, 2009 WL 5850572 (Idaho Ind. Com.). Both of these proceedings
held that an undocumented immigrant’s status is a pertinent nonmedical factor that precludes the
claimant from receiving any permanent disability benefits.
       On July 10, 2017, the Commission issued its written findings of fact and conclusions of law.
The Commission disagreed with the Referee’s recommendation and found that Marquez was entitled
to “the full measure of ‘permanent disability’ guaranteed by the Idaho Worker’s Compensation law .
. . .” In so ruling, the Commission determined that “the most appropriate way to measure permanent
disability based on a loss of earning capacity per Idaho Code §72-425 and Idaho Code §72-430 is to
evaluate disability without reference to such injured worker’s immigration status.” The Commission
thus found that both Otero and Diaz were “wrongly decided.” On July 28, 2017, the appellants filed
a motion for reconsideration. On August 25, 2017, the Commission denied the motion for
reconsideration. On October 6, 2017, the appellants filed a notice of appeal to this Court.
                                 II. STANDARD OF REVIEW
       The standard of review for an appeal from the Commission is two-fold: “The Commission’s
factual findings are subject to a clear error standard, and will be upheld if supported by competent
and substantial evidence construed most favorably to the party who prevailed below. However, this
Court exercises free review over the Commission’s conclusions of law.” Davaz v. Priest River Glass
Co., 125 Idaho 333, 335–36, 870 P.2d 1292, 1294–95 (1994) (quotations and citations omitted).
       This Court liberally construes Idaho’s workers’ compensation statutes in favor of finding
compensation for employees:
       When interpreting the Act, we must liberally construe its provisions in favor of the
       employee in order to serve the humane purpose for which it was promulgated. The
       Act is designed to provide sure and certain relief for injured workers and their
       families and dependents. The primary objective of an award of permanent disability
       benefits is to compensate the claimant for his or her loss of earning capacity.

Wernecke v. St. Maries Joint Sch. Dist. No. 401, 147 Idaho 277, 282, 207 P.3d 1008, 1013 (2009)

                                                 4
(citations omitted). “[D]oubtful cases should be resolved in favor of compensation[;] . . . the humane
purposes which these acts seek to serve leave no room for narrow technical construction.” Smith v.
Univ. of Idaho, 67 Idaho 22, 26, 170 P.2d 404, 406 (1946).
                                                  III. ANALYSIS
A. The Commission erred in finding Marquez could pursue a permanent disability claim
   without reference to his status as an undocumented immigrant.

         At the outset we state the obvious to those trying to implement Idaho’s Workers’
Compensation Act (the “Act”) for undocumented immigrants. 1 Notwithstanding the philosophical
considerations and potential legal entanglements which permeate this case, the Idaho Legislature
made the policy decision over twenty years ago that those unlawfully employed are entitled to
benefits under the Act. As the governing statute clearly states: “A person, including a minor, whether
lawfully or unlawfully employed . . .” shall constitute an employee who is entitled to coverage and
benefits under the Act. I.C. § 72-204 (emphasis added). Moreover, Idaho Code section 72-212,
which lists those whose employment is exempted from the Act, does not include undocumented
workers. In fact, Idaho’s Legislature amended section 72-212 in 1996 and specifically deleted the
agricultural pursuits exemption which had exempted agricultural employers from coverage under the
Act since its original adoption in 1971. Consequently, the Legislature granted coverage to
agricultural workers, a great number of whom are illegal employees. See 1996 Idaho Sess. Laws 609.
The Legislature thus affirmed workers’ compensation coverage for “unlawfully employed” workers
under the Act. I.C. § 72-204.
         Notably, neither party disagrees that undocumented immigrants are entitled to medical
benefits and compensation due to an impairment arising from an industrial accident. The narrow
issue presented in this appeal is whether an undocumented worker can be granted a claim for
permanent disability benefits under the Act without the Commission taking account of his status as



1
 We identify Marquez’s status in the United States as an “undocumented immigrant” because that is the term by which
he was identified by the Industrial Commission and by the parties to this case. Other courts have chosen to refer to such
individuals under the designation of “illegal alien,” although this term carries a pejorative tone in some circles. See
Lozano v. City of Hazleton, 620 F.3d 170, 176 n.1 (3d Cir. 2010), cert. granted, judgment vacated sub nom. City of
Hazleton, Pa. v. Lozano, 563 U.S. 1030 (2011). Under federal law, any non-U.S. citizen is considered an alien. 8 U.S.C.
§ 1101(a)(3). Aliens who have entered the United States without permission, or who have violated the terms of their
admission, are identified under the law as illegal aliens. Nevertheless, we will utilize the term “undocumented
immigrant” because that term was used by the parties and the Commission in its underlying Findings of Fact and
Conclusions of Law.


                                                           5
an undocumented immigrant. Thus, the question before us comes down to one of statutory
interpretation. In that regard, Idaho law provides:
       Where a statute is clear and unambiguous, the expressed intent of the [L]egislature
       shall be given effect without engaging in statutory construction. The literal words of
       a statute are the best guide to determining legislative intent. Only where the language
       is ambiguous will this Court look to rules of construction for guidance and consider
       the reasonableness of proposed interpretations. Statutory language is not ambiguous
       merely because the parties present differing interpretations to the court. Rather,
       statutory language is ambiguous where reasonable minds might differ or be uncertain
       as to its meaning.

City of Idaho Falls v. H-K Contractors, Inc., 163 Idaho 579, ___, 416 P.3d 951, 954 (2018) (internal
quotations and citation omitted). In a case analyzing provisions of the Act, we observed the
following:
       A construing court’s primary duty is to give effect to the legislative intent and
       purpose underlying a statute. Moreover, the court must construe a statute as a whole,
       and consider all sections of applicable statutes together to determine the intent of the
       [L]egislature. It is incumbent upon the court to give the statute an interpretation that
       will not deprive it of its potency. In construing a statute, not only must we examine
       the literal wording of the statute, but we also must study the statute in harmony with
       its objective.

Davaz, 125 Idaho at 336–37, 870 P.2d at 1295–96 (citations omitted). Thus, we review the Act
according to its plain meaning, while not losing sight of its “potency.” Id.
       The plain language of the Act establishes that unlawfully employed persons are entitled to
workers’ compensation coverage. There is no dispute about that conclusion; however, coupling that
tenet with the permanent disability sections of the Act shows that the Commission erred in this case.
       Under the Act a permanent disability occurs “when the actual or presumed ability to engage
in gainful activity is reduced or absent because of permanent impairment and no fundamental or
marked change in the future can be reasonably expected.” I.C. § 72-423. The evaluation of a
permanent disability is defined as an “appraisal of the injured employee’s present and probable
future ability to engage in gainful activity as it is affected by the medical factor of permanent
impairment and by pertinent nonmedical factors [as] provided in section 72-430, Idaho Code.” I.C. §
72-425. The following factors shall be considered in the evaluation of permanent disability:
       In determining percentages of permanent disabilities, account shall be taken of the
       nature of the physical disablement, the disfigurement if of a kind likely to limit the
       employee in procuring or holding employment, the cumulative effect of multiple
       injuries, the occupation of the employee, and his age at the time of accident causing

                                                  6
       the injury, or manifestation of the occupational disease, consideration being given to
       the diminished ability of the afflicted employee to compete in an open labor market
       within a reasonable geographical area considering all the personal and economic
       circumstances of the employee, and other factors as the commission may deem
       relevant. . . .

I.C. § 72-430 (emphasis added). Accordingly, “the test for determining whether a claimant has
suffered a permanent disability [in excess of] permanent impairment is whether the physical
impairment, taken in conjunction with non-medical factors, has reduced the claimant’s capacity for
gainful activity.” Graybill v. Swift & Company, 115 Idaho 293, 294, 766 P.2d 763, 764 (1988)
(emphasis added) (internal quotation marks omitted). “It is a claimant who must bear the burden of
proof in establishing that she [or he] is disabled in excess of impairment.” McCabe v. Jo Ann Stores,
Inc., 145 Idaho 91, 96, 175 P.3d 780, 785 (2007).
       In this case, the Commission found that Marquez’s status as an undocumented immigrant
was not a pertinent nonmedical factor in evaluating his claim for permanent disability under Idaho
Code sections 72–425 and 72-430. In doing so, the Commission ignored the plain wording of section
72-430, which requires that “all the personal and economic circumstances of the employee” be
considered. This clearly includes a claimant’s personal and economic status as an undocumented
immigrant. In addition, the plain language of section 72-425 states that the evaluation of permanent
disability includes the appraisal of the “pertinent nonmedical factors [as] provided in section 72-430,
Idaho Code.” Thus, the Commission must consider all personal circumstances that diminish the
ability of the claimant to compete in an open labor market. Davaz v. Priest River Glass Co., 125
Idaho 333, 336, 870 P.2d 1292, 1295 (1994) (citing I.C. § 72–430(1)); See also Bennett v. Clark
Hereford Ranch, 106 Idaho 438, 680 P.2d 539 (1984).
       In Bennett, this Court held that the Commission misapplied section 72-425. This was because
the Commission failed to consider several personal circumstances that diminished the claimant’s
ability to compete in an open labor market:
       After reviewing the Commission’s findings of fact and conclusions of law, we find it
       clear that the Commission did not apply the standard set forth in I.C. § 72-425 in
       determining that Mr. Bennett was not entitled to a disability award [in excess of] his
       medical impairment rating. There is no indication that the Commission examined Mr.
       Bennett’s “ability to engage in gainful activity as it is affected . . . by nonmedical
       factors, such as age, sex, education, economic and social environment.” The
       Commission did not examine such factors as that Mr. Bennett was 43 years of age
       with no formal education or ability to read or write; that Mr. Bennett could not [sic]
       longer engage in construction or farm work; or that his ability to drive trucks was

                                                  7
         diminished by his accident.

106 Idaho at 441, 680 P.2d at 542; see also Lyons v. Indus. Special Indem. Fund, 98 Idaho 403, 406,
565 P.2d 1360, 1363 (1977) (“The Commission’s approach in this case does not adequately consider
the effect of these nonmedical factors on appellant’s ability to obtain employment.”). These cases
establish that the Commission’s task must be broad-based and far-reaching, considering the entire
landscape of a claimant’s economic and social history. Such history must include the claimant’s
immigration status when he or she is undocumented.
         During oral argument both parties seemed to acknowledge that the outcome reached by this
Opinion is congruent with the Act’s meaning and purpose. The parties also intimated that this Court
should provide guidance for the Commission on remand relative to the factors which must be
considered in determining questions of permanent disability under the Act. We decline to do so,
leaving the Commission to fulfill its mandate as a fact-finder in making these determinations. We do
note, however, that just as creating a legal construction that ignores a claimant’s immigration status
in making a permanent disability finding is erroneous, so too is the position taken in Otero and Diaz
that such a condition is an absolute bar to such an award. Again, the Legislature has provided that all
employees, lawfully or unlawfully employed, are entitled to the full panoply of benefits under the
Act. As such, a claimant must be free to state his case and attempt to meet his burden in establishing
his claim. The employer is also free to counter that argument, but without an outright proscription of
the employee’s right to claim benefits simply because he or she is an undocumented worker. In this
respect, the employer and the Commission must recognize the fact that a labor market does exist for
undocumented workers in this state. 2
         Certainly this result may pose difficulty for both parties on remand; however, this is not a
predicament of the Court’s making. The Act provides that unlawfully employed workers have
coverage for their claims; Marquez has been paid over $127,000 thus far; the Commission is simply
mandated to follow what Idaho law requires, which is to consider “all the personal and economic
circumstances of the employee, and other factors as the commission may deem relevant” in making
its determination. I.C. § 72-430. This Court will not address the specific weight of a claimant’s
undocumented immigration status in evaluating a claim for permanent disability, nor will we

2
 We recognize that the rehabilitative purposes of the Act, and in particular the functions of the ICRD cannot square with
assisting a disabled worker to find other work when that worker is undocumented. Assisting an undocumented worker in
obtaining further illegal work could violate federal law. This is not a reality without a remedy, however, where the
Legislature, should it choose, take whatever action it deems necessary to remedy this situation.

                                                           8
prejudge whether Marquez is entitled to receive permanent disability in excess of impairment in this
case. That determination is contingent upon the unique set of facts yet-to-be-presented to the
Commission in light of our ruling in this case.
        We recognize that the hiring of undocumented immigrants is a crime under federal
immigration laws—and we do not condone the violation of these laws. However, “[t]he power
invested to this Court is limited to interpretation of the constitution and laws and their application to
the factual situations presented by the cases that come before the Court. . . . The power to make law
and declare public policy is vested with the [L]egislature.” Elec. Wholesale Supply Co. v. Nielson,
136 Idaho 814, 825, 41 P.3d 242, 253 (2001). If the Idaho Legislature desired to create an absolute
bar for permanent disability for those “unlawfully employed” within the Act, it was free to do so
when it amended the Act and removed the agricultural pursuits exemption in 1996 or thereafter.
Moreover, if the Legislature wanted to prohibit undocumented immigrants from receiving a benefit
under the workers’ compensation statutes, it could have created an express prohibition in that
regard—just like it did regarding unemployment benefits. See I.C. §§ 72-102(1), 72-1366(19)(a). For
now, the Legislature has explicitly included those “unlawfully employed” in the Act and failed to
exclude undocumented immigrants as exempt within Idaho’s workers’ compensation statutes. Given
the plain language of sections 72-204 and 72-212 and the liberal interpretation afforded to workers’
compensation statutes in favor of compensation, we decline to hold that a claimant’s undocumented
immigration status alone is an absolute bar to the receipt of permanent disability benefits. Instead,
we hold that a claimant’s undocumented immigration status is a pertinent nonmedical factor that
must be weighed on a case-by-case basis in evaluating his or her claim for permanent disability.
                                         IV. CONCLUSION
        We reverse the order of the Commission and remand this case for further proceedings
consistent with this Opinion. Costs to Marquez.
        Chief Justice BURDICK, Justices HORTON and BRODY, CONCUR.


SCHROEDER, J. pro tem, concurring in part and dissenting in part:

        I concur in that part of the Opinion that reverses the Commission decision that “the most
appropriate way to measure permanent disability based on a loss of earning capacity per Idaho
Code Section 72-425 and Idaho Code Section 72-430 is to evaluate disability without reference



                                                   9
to such injured worker’s immigration status.” Clearly his status as a person in this country
illegally is a pertinent non-medical factor.
        I dissent from that portion of the Opinion which remands the case for a further hearing and
determines that Otero and Diaz were erroneously decided. This case should conclude the
proceedings with a determination that Mr. Marquez is not entitled to permanent benefits. Part 2 of
the stipulated facts states: “Marquez had no legal access to the Idaho or United States labor market.”
That stipulation should end the case. Without dispute, the only way he could establish a right to the
future benefits sought would be to prove that he could violate the law, e.g. steal still another person’s
identity, and obtain employment from a complicit employer who would also violate the law, as his
last employer has done. He has obtained the Worker’s Compensation benefits to which he is entitled
and which the legislation made available to him – in the area of $127,000.00. That’s where this case
should stop.
        Calling Mr. Marquez an “undocumented immigrant” glosses over the reality that he is in the
country illegally and has obtained employment through the artifice of stealing the identity of another
or two other people. He has purchased the social security number of a real person and used it
without regard to the adverse consequences that might fall on that person. His employer has been
complicit in this conduct, telling him to get another social security number when the fact was
exposed that he had stolen the identity of another person by use of that person’s social security
number. This record does not show what consequences the victim (victims) may have or will suffer
from the identity theft. It takes little imagination to picture IRS and debtor/creditor difficulties. In
this mix his employer has benefitted by knowingly employing the illegal worker while likely
competing with other businesses that may follow the law. On this record any determination of a
future employment market must depend on the Commission and ultimately this Court accepting the
continuing cycle of illegal conduct by the employee and often the employer. The Commission
should not, and certainly this Court should not, make a decision accepting illegal conduct as a basis
for an award of future benefits. Mr. Marquez has received the benefits the Legislature could
reasonably expect him to receive. But the door should close based on the stipulation he “had no
legal access to the Idaho United States labor market.” The prior Commission decisions in Otero and
Diaz got it right.




                                                   10
11
