As the Compensation Review Board (the “CRB”) wrote in its decision that petitioners have asked us to review, the issues before us “center on [claimant/interve-nor’s] status as an undocumented alien.” 1 Petitioners, Asylum Company and Insurance Designers of Maryland (together, the “Employer”), contend that claimant/inter-venor, Palemón Cassarubias Gonzales (“Claimant”), who sustained a workplace injury on June 30, 2005, is not entitled to “compensation for lost wages for temporary total disability after July 17, 2005,” the date when the Employer learned of his undocumented-alien status and terminated him. The Employer asks us to hold that the CRB erred in upholding the contrary determination by a Department of Employment Services (“DOES”) administrative law judge (“ALJ”).
To resolve the specific questions presented by the Employer’s petition, we must begin by resolving an issue that is one of first impression in this jurisdiction: whether a worker who is an undocumented alien is covered under the District of Columbia Workers’ Compensation Act (the “Act”).
2
This question requires us to consider (i) whether a worker who is an undocumented alien is an “employee” within the meaning оf the Act, and, if so, (ii) whether, for purposes of the Act, the cause of the worker’s wage loss following an incapacitating workplace injury may be considered to be the worker’s physical (or mental) incapacity, rather than the provision of federal law (IRCA) that makes it unlawful for an employer in the United States who has knowledge of the worker’s status to employ the worker. An additional question we must resolve is whether, if an undocumented-alien claimant is eligible to receive benefits under the Act, IRCA has the preemptive effect of precluding a workers’ compensation award to such a
We affirm the CRB’s ruling as to all but the last of these issues and therefore uphold the determination that Claimant was entitled to temporary totаl disability benefits for the period June 30, 2005 to January 25, 2006. As to the last issue, relating to imposition of the average-weekly-wage penalty, we reverse and remand, because the record does not support the ALJ’s finding that no reason was presented for the Employer’s delay in payment of benefits, and because the ALJ did not make credibility determinations or other findings to support an inference of employer bad faith. The CRB’s rationale for upholding the average-weekly-wage penalty — rejection of the Employer’s argument that it could not lawfully pay wage-loss benefits to Claimant — was not a sufficient basis for concluding that the Employer acted in bad faith.
I.
On June 30, 2005, Claimant was working as a busboy and bar bus at a restaurant and bar owned by petitioner Asylum Company when he was struck in the right eye by a bottle thrown by a customer. Another employee of the establishment took Claimant to the hospital, where he was diagnosed with a dislocated lens. As described in the ALJ’s compensation order, the lens of Claimant’s right eye “had been dislocated outside of the visual field of the eye causing 100% total loss of vision” of the right eye. In July 2005, Claimant underwent surgery on his eye. Not until January 25, 2006, was Claimant cleared to return to work by his treating physician. During the course of his recovery, Claimant suffered eye pain, elevated eye pressure (glaucoma), and blurred vision.
In the meantime, Claimant’s hospital bills, which showed his name as “Palemón Casarrubias Gonzalez,” had been sent to the Employer. At the hearing before the ALJ, David Karim — an owner of the establishment where Claimant worked, whose duties included supervision as well as hiring and firing of employees — testified on behalf of the Employer. Karim explained that he was confused when he received hospital bills for services provided to “Pa-lemon Casarrubias Gonzalez,” since he knew Claimant as “Armando Casarrubias” or “Armando Casarrubias Gonzalez,” the name shown on records in the Employer’s personnel files. On July 17, 2005, although not yet cleared to return to work by his treating physician, Claimant returned to the establishment and asked to resume work part-time. According to Karim, it was then that the Employer learned that Claimant had obtained his job by using thе name and papers of his cousin (Armando Casarrubias), and that Claimant himself was an undocumented alien.
3
Kar-
On August 15, 2005, Claimant filed a claim for workers’ compensation benefits. Although the woi'kers’ compensation statute requires an employer either to make prompt payment of wage-loss benefits or to file a timely notice controverting the worker’s claim, the Employer neither began paying benefits nor filed a notice of controversion. The matter eventually went to hearing, and in an August 1, 2007 compensation order, the ALJ determined that Claimant was temporarily and totally disabled and entitled to benefits for the June 30, 2005-January 26, 2006 period. The ALJ found that Claimant’s wage loss for that period was attributable to his workplace injury and that Claimant’s attempt to return to work on July 17, 2005, had been against medical advice. The ALJ also found that the Employer had failed to file a timely notice of controversion and had withheld payment of compensation in bad faith. Upon the finding of bad faith, the ALJ awarded Claimant wage-loss benefits in the amount of Claimant’s average weekly wage ($362.66), as provided in D.C.Code § 32-1528(b) (2001). 4 The ALJ also awarded Claimant an additional ten percent as a penalty on the Employer for failure to timely file a notice of controversion, 5 as well as interest on accrued benefits. The Employer sought review by the CRB, which affirmed the compensation order in a decision dated August 22, 2008. The Employer’s petition to this court followed.
II.
Our review of administrative agency decisions is limited, and we must affirm an agency decision unless it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.
Providence Hosp. v. District of Columbia Dep’t of Emp’t Servs.,
III.
We turn first to the issue of whether unauthorized aliens may bе covered at all under the District’s workers’ compensation statute. Although the Employer purports not to raise this underlying issue, it emphasizes that the Act’s definition of “employee” makes no mention of “illegal aliens” and implies that, in concluding that coverage under the Act extends to Claimant, the CRB improperly re-wrote the Act. And, regardless of the Employer’s position on the issue of coverage, resolution of this issue is a logical precursor to resolving the issues that the petition presents.
The ALJ concluded summarily that Claimant’s immigration status “[had] no application to his eligibility for workers compensation benefits.” The CRB addressed the issue more expansively, noting that the Act defines “employee” as
“every person,
including a minor, in the service of another under any contract of hire or apprenticeship, written or implied, in the District of Columbia.”
Gonzalez v. Asylum Co.,
CRB No. 08-077, AHD No. 06-224, OWC No. 617421, 2008 DC Wrk. Comp. LEXIS 352 at *16-17 (Aug. 22, 2008) (citing D.C.Code § 32-1501(9) (2001)) (emphasis added by the CRB). The CRB also noted that while the Act “sets forth certain exceptions to the definition, ... none of them reference^] an undocumented alien”; and that “[although the ... Council [оf the District of Columbia] has amended the definition of ‘employee’ over the years, the legislative history reveals no legislative intent to exclude an undocumented or illegal alien from the definition of ‘employee.’ ”
6
Gonzalez,
2008 DC Wrk. Comp. LEXIS 352 at *17. The CRB also took into account that “[i]n this jurisdiction, it is well-settled the Act is to be
Reviewing the matter de novo but according due deference to the CRB’s construction of the Act, we have little difficulty agreeing with the CRB’s conclusion. It is consistent with the language of the Act, specifically, D.C.Code § 32-1501(9) (2001), which excepts certain specified categories of workers from the definition of “employee,” 7 but otherwise sets out a broad definition that neither excludes undocumented aliens nor makes a worker’s immigration status relevant. See Report on Bill 3-106 at 10 (referring to the legislation’s “all[-]inclusive delineation of coverage”). As the CRB recognized, the Council has made repeated amendments tо the definitional section of the Act, including amendments to the provision defining the term “employee.” 8 Although the Council made some of these changes in the wake of a DOES decision interpreting the Act to cover undocumented aliens (see Castano v. American Painting and Gen. Contractors, Inc., H & AS No. 93-115, OWC No. 221684, 1993 DC Wrk. Comp. LEXIS 10 (November 29, 1993)), it has not acted to exclude undocumented aliens from the definition of “employee.” This weighs in favor of an inference that inclusion of undocumented aliens within the definition is consistent with the Council’s intent. 9
In other jurisdictions, employers contending that undocumented-alien workers fall outside the workers’ compensation statute definition of “employee” have fo
In
Dowling,
the Connecticut court considered the definition of “employee” in the Connecticut workers’ compensation statute, which, like our Act, defines the term to include a person who works “under any contract” of hire.
11
The Dowling court also cited “the view of a majority of ... states that violation of a statute or commission of a crime does not affect a workers’ compensation claim when the illegal feature of the conduct was not the causative factor in producing the injury.” Id. at 412 (quoting 2 A. Larson & L. Larson, Workers’ Compensation, § 35.20 (1997)). The court recognized that to hold otherwise “would lead to every workers’ compensation claim being investigated to determine whether the claimant had made a misstatement when hired” and would require the hearing office “to adjudicate questions of fact in a forum that is not suited for making wide-ranging factual determinations.” Id. at 413 n. 18.
We adopt the
Dowling
court’s reasoning in interpreting our own statute, and note that the reasoning is consistent with DOES’s longstanding interpretation that an unauthorized-alien claimant who has used false documents to obtain work does not foreclose his claim for benefits under the Act.
See Castaño,
1993 DC Wrk. Comp. LEXIS 10 at *4, *13;
Dorantes v. Component Assembly Sys., Inc.,
OHA No. 03-082, OWC No. 571430, 2003 DC Wrk. Comp. LEXIS 153, * *4-11 (May 15, 2003);
see also District of Columbia v. American Univ.,
We note in addition that the CRB’s conclusion furthers the purpose of the Act to provide not only “[bjroad coverage of employees” but also “[encouragement of safety.” Report on Bill 3-106 at 3;
see also
Report on Bill 8-74 at 4. Interpreting the Act to exclude undocumented aliens, thereby permitting employers to avoid payment of benefits to such workers, could undermine the goal of encouraging employers to foster a workplace that is safe for all workers.
12
Finally, as the CRB observed, interpreting the term “employee” in the Act to include undocumented workers is consistent with the principle that the Act is to be construed liberally to achieve its humanitarian purpose.
See Vieira,
IV.
The Employer contends, however, that even if Claimant was entitled to cer
To begin with, substantial evidence supports the conclusion that Claimant’s attempt to return to his former work on July 17, 2005, was “against medical advice.” 14 Claimant’s treating physician, Dr. Kenyon Kramer, did not clear him to return to work until January 25, 2006, because of lens prоblems that Claimant continued to experience until that date. 15
Regarding the question of which— Claimant’s physical impairment, or instead his termination based on his status as an unauthorized alien — is to be regarded as the cause of Claimant’s loss of wage-earning capacity for the July 17, 2005, to January 26, 2006 period, we again owe deference to the CRB’s reasonable interpretation. The CRB held that the Act entitles workers who are undocumented aliens “to temporary total disability benefits for the duration of the temporary total disability, and medical benefits for so long as they would be available to a legal or documented worker.”
Gonzalez,
2008 DC Wrk. Comp. LEXIS 352 at *28. The CRB’s interpretation accords with this court’s decision in
Georgetown Univ. Hosp.,
We аgree with respondent DOES that, under the Act, “the fact that an employee may be unable to work for reasons beyond his injury does not affect his entitlement to benefits, as long as the injury independently causes that disability.” To be sure, Claimant’s termination prevented him from working for the Employer and his undocumented status prevented other employers in the United States from lawfully employing him. But it was the work-related injury to Claimant’s eye, and the time required for Claimant to recover from that injury and to adjust to his impaired vision, that made him physically unable to return to comparable wage-earning anywhere, thereby rendering him “disabled” within the meaning of the Act. 16 The CRB did not err in upholding the ALJ’s determination that the cause of Claimant’s loss of wage-earning capacity from July 17, 2005, until January 26, 2006, was his work-related injury.
V.
We turn next to the Employer’s argument that even if Claimant was eligible under the Act to receive workers’ compensation benefits, IRCA preempts application of the average-weekly-wage provisions of the Act and precluded the ALJ from requiring the Employer to pay Claimant wage-loss benefits equаl to 100 percent of his average weekly wage. In a nutshell, the Employer’s argument is that the compensation order effectively required the Employer to pay wages to Claimant for the disability period even though IRCA prohibited the Employer from employing Claimant upon discovery of his undocumented status. As the Employer puts it, “if Intervenor could not be rehired because of IRCA, he also could not receive any wages from Asylum, once his illegal status was discovered.” The CRB, however, concluded that “IRCA does not preempt” the average-weekly-wage penalty provision of the Act or “excuse an employer[ ] [from] compliance” with a compensation order directing the employer to pay a claimant’s average weekly wage for the period of the claimant’s temporary total disability. Gonzalez, 2008 DC Wrk. Comp. LEXIS 352 at *21. We agree with the CRB.
A federal law can preempt state law “by express pre-emption, where statutory language reveals an explicit congressional intent to pre-empt state law.”
In re Estate of Couse,
Federal law can also preempt state law “by field pre-emption, in which federal law so thoroughly occupies a legislative field as to make reasonable the inference that Congress left no room for the States to supplement it.”
Estate of Couse,
There may also be conflict preemption, “which applies where compliance with both federal and state regulations is a physical impossibility, or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives] of Congress.”
Estate of Couse,
As courts have recognized in a variety of contexts, the purpose of backpay “is to ... place the grievant in the position that the grievant would have been absent a violation,”
In re Lilly,
In contrast — and contrary to the Employer’s assertion — the award in issue here is not an award of back pay, but instead is an award of wage-loss benefits. Wage-loss benefits are “predicated upon the loss of wage-earning capacity.”
Logan v. District of Columbia Dep’t of Emp’t Servs.,
Further, we dо not believe that payment of wage-loss benefits to claimants who are undocumented aliens “stands as an obstacle to the accomplishment and execution of the full purposes and objectives] of Congress” in passing IRCA. Through IRCA, Congress sought to “reduce the flow of illegal immigration into the United States by removing the employment ‘magnet’ that draws undocumented aliens into the country,”
Montero v. INS,
VI.
The Employer’s final argument is that even if the average-weekly-wage award was not preempted by IRCA, the CRB erred in sustaining that aspect of the compensation order, because the record does not support the ALJ’s finding that the Employer delayed payment of benefits in bad faith. In upholding the ALJ’s finding of bad faith, the CRB concluded that the ALJ “correctly applied ... to the facts of this case” the analytical approach that DOES established in Bivens v. Chemed/Roto Rooter Plumbing Servs., CRB. No. 05-215, AHD No. 01-002B, OWC No. 560668, 2005 DC Wrk. Comp. LEXIS 397 (April 28, 2005). Gonzalez, 2008 DC Wrk. Comp. LEXIS 352 at *21. Under that approach, “[t]o establish a pri-ma facie showing of bad faith, the injured worker must show (1) entitlement to a benefit, (2) knowledge by the employer of a claim to the entitlement, and (3) employer’s failure to provide the benefit or to controvert the claimed entitlement within a reasonable time.” Gonzalez, 2008 DC Wrk. Comp. LEXIS 352 at *10. “Once the injured worker makes this showing, the burden shifts to the employer to produce evidence indicating a good faith basis for not paying the benefits.” Id. “Upon such production by the employer, the injured worker has the additional burden of proving the said evidence is pretextual.” Id.
The Employer does not appear to challenge the validity of the
Bivens
test, but maintains that the ALJ failed to apply the test correctly in this case. Having correctly articulated the
Bivens
test, the ALJ found that the Employer “was aware of the claimant’s injury and its relationship to his employment at the time of its occurrence,” knew of Claimant’s formal claim for benefits, and had “knowledge of a claim to entitlement to workers’ compensation benefits by the claimant,” but “failed to provide the benefit or to controvert the claimant entitlement within a reasоnable time or the statutory period required for a notice of controversion to be filed.” Therefore, the ALJ reasoned, the burden shifted to the Employer to “produce evi
Mr. Karim testified that while he handled practically all aspects of running and operation of the employer’s business, ... he did not know what a notice of controversion was and he did not file one.
Therefore, considering the analysis in Bivens, there being no record or evidence anywhere as to the employer’s reasons for not paying or controverting the claimant’s claim for workers’ compensation benefits, ... their bad faith for non-payment may therefore be inferred. Assuming the employer declined to pay benefits to the claimant upon the same basis they gave for not rehiring claimant, that he was an undocumented worker, there is no legal basis for taking that position because while employers are legally barred from hiring undocumented workers, that has no application to then- eligibility for workers compensation benefits. D.C.Cоde § 32-1501(9). Dorantes v. Component As sembly Systems, Inc., OHA No. 03-082, owe No. 571430 (Final Compensation Order, May 15, 2003).
Considering the evidence in the record, I find that the employer’s failure or delay in paying workers’ compensation benefits to the claimant was in bad faith and that he is entitled to penalties pursuant to D.C.Code § 32-1528(b).
In determining whether to uphold the ALJ’s finding of bad faith, the CRB discussed the meaning of “employee” under the Act (concluding that it includes workers who are undocumented aliens) and cited the decisions by DOES in two earlier cases (Dorantes and Castano) that allowed benefits under the Act to claimants who were undocumented aliens. The CRB also discussed case law from courts in other jurisdictions and secondary authority concluding that IRCA does not bar the payment of workers’ compensation benefits to unauthorized aliens. On the basis of these precedents, the CRB upheld the ALJ’s determination that the Employer acted in bad faith. Gonzalez, 2008 DC Wrk. Comp. LEXIS 352 at *21 (“Accordingly, the Panel rejects the [Employer’s] challenge of the ALJ’s finding that it acted in ‘bad faith’ when it delayed paying worker’s compensation benefits”). The CRB added that “[assuming arguendo the [Employer] did not pay bеnefits because [Claimant] was an undocumented alien, ... [Claimant’s] undocumented status did not affect the [Employer’s] responsibility to pay benefits or to timely controvert [Claimant’s] claim.” Id.
The Employer contends that the CRB erred in affirming the finding of bad faith, because the ALJ did not consider the Employer’s evidence of good faith and failed to shift the burden back to Claimant to show that petitioners’ reasons for nonpayment were pretextual. We agree. As shown by the quoted material from the compensation order, the ALJ did not shift the burden back to Claimant because he found “no record or evidence anywhere as to the employer’s reasons for not paying or else controverting the claimant’s claim.” In making that statement, the ALJ appears to have assumed — incorrectly in either case — that filing a notice of controversion is sufficient to negate bad faith or that failure to file a notice of controversion is sufficient by itself to demonstrate bad faith. In addition, in finding that there was no evidence in the record of a reason for the Employer’s delаy in paying or controverting the claim, the ALJ ignored Kar-im’s testimony that he did not know what a notice of controversion was (an assertion that, if credited, would make it inappropriate to treat the failure to file such a notice as evidence of bad faith). In addressing the issue of bad faith failure to pay wage-loss benefits, the ALJ also did not take
The CRB did not focus on the evidence cited above or on the ALJ’s finding about
For the foregoing reasons, we conclude that on the present record, we cannot uphold the determination that the Employer is subject to the average-wеekly-wage penalty. A remand is necessary, so DOES can consider all of the evidence of record that may bear on whether the Employer acted in bad faith.
VII.
In conclusion, we uphold the CRB’s decision affirming the ALJ’s determination that Claimant is entitled to an award of temporary total disability benefits for the June 30, 2005, to January 26, 2006 period. We also hold that IRCA did not preclude an order requiring the Employer to pay wage-loss benefits equal to Claimant’s average weekly wage. However, we reverse that portion of the CRB’s ruling sustaining the average weekly-wage award, because we conclude that the ALJ failed to consider all of the evidence of record in determining that the Employer acted in bad faith, and that rejection of the Employer’s arguments centering on Claimant’s undocumented status was not enough to establish bad faith. We remand for further proceedings not inconsistent with this opinion.
So ordered.
Notes
. In this opinion, we use interchangeably the terms “undocumented alien” (the phrase the CRB used) and "unauthorized alien,” the term that is used in the Immigration Reform and Control Act of 1986 ("IRCA”). IRCA generally makes it unlawful for an employer in the United States knowingly to employ an "unauthorized alien.” 8 U.S.C. § 1324a (a)(1)(A) (2006). It defines the term "unauthorized alien” to mean, "with respect to the employment of an alien at a particular time, that the alien is not at that time either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this Act or by the Attorney General.” Id. § 1324a (h)(3).
. We must answer this fundamental question even though the Employer asserts that it does not dispute Claimant's entitlement to "certain [types of] benefits" under the Act.
. The "Background” section of the compensation order states that it was when Claimant was recovering that the Employer "became aware from medical bills they received for Claimant's medical treatment that he had obtained employment by using an alias.” In contrast, Claimant testified that at the time he was hired, he told "the person who take[s] care of the busboys” for the Employer that he did not have a valid Social Security number. That person told Claimant to give the Social Security number of his cousin, to "get a green card with the name of Armando but widi [Claimant’s] picture,” and to work under Armando’s name. In the "Findings of Fact" section of the compensation order, the ALJ did not explicitly credit one account over the other or make a finding about whether the
. D.C.Code § 32-1528(b) (2001) provides that if a court “determines that an employer or carrier has delayed the payment of any installment of compensation to an employee in bad faith, the employer shall pay to the injured employee, for the duration of the delay, the actual weekly wage of the employee for the period that the employee is eligible to receive workers’ compensation benefits.” By contrast, in the absence of such delay, temporary total disability benefits are equal to "66 2/3% of the employee’s average weekly wages.” D.C.Code § 32-1508(2) (2001).
. See D.C.Code § 32-1515(b) (2001) (providing generally that "[t]he 1st installment of compensation shall become due on the 14th day after the employer has knowledge of the job-related injury or death,” and that "[tjhеre-after compensation shall be paid in installments, biweekly.”); id. § 32-1515(e) ("If any installment of compensation payable without an award is not paid within 14 days after it becomes due ..., there shall be added to such unpaid installment an amount equal to 10% thereof, ... unless notice is filed under subsection (d) of this section .... ”); and id. § 32-1515(d) ("If the employer controverts the right to compensation he shall file with the Mayor, on or before the 14th day after he has knowledge of the alleged injury or death and its relationship to the employment, a notice in accordance with a form prescribed by the Mayor stating that the right to compensation is controverted, the name of the claimant, the name of the employer, the date of the alleged injury or death and the grounds upon which the right to compensation is controverted”).
. The CRB cited the D.C. Council, Committee on Housing and Economic Development, Report on the District of Columbia Workers' Compensation Act of 1979, Bill 3-106 (January 29, 1980) (“Report on Bill 3-106”); D.C. Council, Committee on Housing and Economic Development, Report on the District of Cоlumbia Workers' Compensation Equity Amendment Act of 1990, Bill 8-74 (July 6, 1990) ("Report on Bill 8-74”); and D.C. Council, Committee on Government Operations, Report on the Workers' Compensation Act of 1998, Bill 12-192 (October 29, 1998).
.Section 32-1501(9) excepts from the definition of "employee” several categories of workers: "(A) An employee subject to the provisions of § 7902 and subchapter I of Chapter 81 of Title 5, United States Code [pertaining to federal employees]; (B) An employee subject to the provisions of subchapter XXIII of Chapter 6 of Title 1 [pertaining to employees of the District of Columbia]; (C) Any secretary, stenographer, or other person performing any services in the office of any member of Congress, or under the direction, employment, or at the request of any member of Congress; (D) An employee of a common carrier by railroad when engaged in interstate or foreign commerce or commerce solely within the District of Columbia; (E) An employee engaged in employment that is casual and not in the usual course of trade, business, occupation, or profession of the employer unless the employee is employed in domestic service in and around a private home by any employer who, during any calendar quarter in the same or the previous year, employed I or more household domestic workers for 240 hours or more; or (F) Any person who is a licensed real estate salesperson, or a licensed real estate broker associated with a real estate broker, if: (i) Substantially all of the salesperson's or associated broker's remuneration is derived from real estate commissions; (ii) The services of the salesperson or associated broker are performed under a written contract specifying that the salesperson or associated broker is an independent contractor; and (iii) Such contract includes a provision drat the salesperson or associated broker will not be treated as an employee for federal income tax purposes.”
. See, e.g., District of Columbia Workers' Compensation Act of 1979 Amendment Act of 1994, D.C. Law 10-169; 41 D.C.Reg. 5145 (1994) (excluding certain reаl estate sales agents and brokers from the definition of "employee”) and Criminal Code and Clarifying Technical Amendments Act of 1999, D.C. Law 13-49; 46 D.C.Reg. 5153 (1999) (adding a definition of "nonscheduled benefits”).
.
Cf. United States v. Rutherford,
. The Employer also cites this court's opinion in
Marboah v. Ackerman,
. Like our statute, the Connecticut statute’s definition of "employee” does not contain language, such as that found in the workers' compensation statutes in many other jurisdictions, stating that persons are covered under the statute "whether lawfully or unlawfully employed.” See, e.g., Va.Code Ann. § 65.2-101. See generally 3 Lex K. Larson, Larson’s Workers’ Compensation Law § 66.03[2][b] (Rev. ed. 2010) (noting that while the workers' compensation statutes in some jurisdictions explicitly cover aliens whether lawfully or unlawfully employed, "courts have found illegal aliens to be included in the definition of employees covered by the act despite the absence of any provision expressly addressing the issue”).
.
Cf. Mendoza v. Monmouth Recycling Corp.,
. IRCA makes it "unlawful for a person or other entity ... to hire, or to recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien” and "after hiring an alien for employment ... to continue to employ the alien in the United States knowing the alien is (or has become) an unauthorized alien with respect to such employment.” 8 U.S.C. § 1324a (a)(1)(A) & (2).
. If there is substantial evidence in the record to support the CRB’s determination, i.e., "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion,” we will not substitute our judgment for that of the CRB, even if there may be contrary evidence in the record.
Georgetown Univ. Hosp.,
.Dr. Kramer opined that, three weeks after Claimant underwent eye surgery, Claimant could have returned to a desk job not requiring the use of both eyes, but the record contains no evidence that Claimant could have qualified for such a job.
. Under the Act, "disability” means "physical or mental incapacity because of injury which results in the loss of wages.” D.C.Code § 32-1501(8) (2001).
. The Council recognized that because an employer could "toll[] the 10% interest payment” on delayed compensation simply by controverting a claim, another penalty was needed to deter non-good-faith payment delays. Id.
. D.C.Code § 32-1511(a)(5) creates one exception (not applicable here) to the backwards-looking calculation of benefits: "If it be established that the employee, when injured, was a minor or a student ... and that under normal conditions his wages should be expected to increase during the period of disability, whether such disability be temporary, partial, or permanent in character, the fact shall be considered in arriving at his average weekly wage.”
. Moreover, unlike statutes providing for awards of back pay, the Act caps disability benefits (at "the average weekly wages of insured employees in the District of Columbia or $396.78, whiсhever is greater,” D.C.Code § 32—1505(b)).
. In
Hoffman,
the Supreme Court also noted that an unauthorized alien seeking a remedy of back pay "cannot mitigate damages, a duty our cases require, ... without triggering new IRCA violations, either by tendering false documents to employers or by finding employers willing to ignore IRCA and hire illegal workers."
. The ALJ rejected Claimant’s argument that, in violation of D.C.Code § 32-1542, the Employer terminated him in retaliation for filing a workers’ compensation claim, and Claimant has not asked us to review that determination. Accordingly, we need not consider whether IRCA would have preempted the remedy prescribed by § 32-1542, i.e., that ”[a]ny employee so discriminated against shall be restored to his employmеnt and shall be compensated by his employer for any loss of wages arising out of such discrimination. ...”
. See,
e.g., Abel Verdon Constr. v.
Rivera,S.W.3d-,-,
. Employer appears to rely on Karim's statement as the record basis for its argument that Employer’s reasoning was that "if Intervenor could not be rehired because of IRCA, he also could not receive any wages from Asylum, оnce his illegal status was discovered.” While the ALJ may have discredited Karim’s testimony, he did not so state in the compensation order (and, as to other issues, such as the date when Claimant attempted to return to work, the ALJ credited Karim’s testimony over Claimant’s). In addition, the ALJ did not, either explicitly or implicitly, credit Claimant's testimony that the Employer knew that he was working under his cousin’s name over Karim’s testimony that the Employer learned this only when Claimant attempted to return to work after sustaining his injury. The ALJ also made no finding about the testimony by Claimant and Claimant's witness Manuel Gonzales that the Employer permitted others to work at the establishment while knowing that their documents were not legal.
. Claimant asserts that this payment was to dissuade Claimant from filing a workers’ compensation claim, and thus evidenced bad faith, but the ALJ made no finding on this point.
. The Employer also argues that the ALJ ignored the Employer’s offer of a settlement payment (in the amount of "67% permanent loss of use of Claimant’s eye,” amounting to $17,764.38) to Claimant in June 2006, as well as the Employer’s payment of Claimant’s medical bills (in April and May of 2006). Hоwever, these facts do not appear to be relevant to whether Employer acted in bad faith in delaying payment of benefits in the period immediately following Claimant's application for benefits in August 2005.
. The Act does not define "bad faith,” but DOES has relied on the Black’s Law Dictionary definition of the term. Bivens, 2005 DC Wrk. Comp. LEXIS 6 at *17-18.
. Indeed, as the AU recognized, such factors "made the filing of a notice of controversion [even] more warranted.” The Employer complains that the ALJ made no finding as to when the notice of controversion should have been filed, but, as the CRB recognized, the Employer waived this claim by agreeing, in its "Employer-Insurer’s Reply to Claimant's Response and Motion to Dismiss Petition for Review” (submitted to the CRB on February 5, 2008), that ”[t]he ... sanction which should have been allowed here was the penalty for failing to file a Notice of Controversion."
. This is notwithstanding the fact that most courts that have ruled on the issue have held that IRCA does not bar payment of workers’ compensation benefits to unauthorized aliens. See generally 3 Lex K. Larson, Larson's Workers’ Compensation Law § 66.03[3][a] (Rev. ed. 2010) (explaining that courts generally have not understood IRCA's preemption of inconsistent state laws “as barring any sort of payment on behalf of injured workers").