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1 migrant worker's effort to claim workers' comp, a right all workers have despite immigration status

Nell Salzman, Chicago Tribune on

Published in News & Features

CHICAGO — Jose Antuna fell through a drain at a west suburban car wash where he worked and tore his meniscus in mid-November. The 40-year-old from Venezuela didn’t have a work permit at the time and was making $10 an hour.

But after being injured for a second time in May while working at a flea market — this time as an innocent bystander when a woman allegedly attempted to run her car into her adulterous husband — he can barely walk around his apartment.

He struggles to load himself onto CTA buses for his physical therapy appointments. He spends his days sitting or sleeping, watching his 3-year-old daughter, Luz, run around his apartment.

In Illinois, it is illegal under the Immigration Reform and Control Act of 1986 to knowingly hire workers who are in the country without legal permission. However, these workers are as entitled to workers’ compensation benefits when injured on the job as people who are citizens.“It’s hard. I don’t have a way to pay for rent right now,” Antuna said in Spanish. “I’m worried my family will be kicked out of my apartment.”Immigrants who can’t work legally are more likely to work higher-risk jobs and less likely to know how to access protection if they need it, advocates say. While experts say that there is no way to officially track how many workers’ compensation cases from migrants have been filed, with more than 43,000 migrants who have passed through Chicago in almost two years, some workers’ compensation lawyers say they have seen an increase in migrant cases.“They still have virtually the same workers’ compensation rights as every other worker,” said Brian Hercule, the worker’s compensation and personal injury attorney representing Antuna. “It falls on the employer to be to take responsibility for their employees.”

A slow process

Living paycheck to paycheck, Antuna looked online and found an attorney to help him file a work compensation claim against the car wash. He told his boss he was moving forward with a claim.

But he said his boss went to his eldest daughter’s house in Chicago and tried to bully her so that her father wouldn’t move forward with it.

“My daughter called me desperately, he had gone there, had threatened her,” Antuna said.

Hercule largely represents immigrants. He said that in the 14 years he’s been practicing, he’s consistently seen employers who try to use a person’s immigration status against them.

Because Antuna’s case is still pending, Hercule could not provide any more specifics. But he said the process can take months or even years to resolve, depending on the nature of the injury and the amount of treatment a person is getting.

“It’s a slow process, unfortunately,” he said.

With the help of the workers’ compensation firm, Antuna started going to physical therapy.

Workers who have filed for compensation are supposed to receive temporary, weekly wage replacement benefits during the period in which they’re being treated, and then more once the case is closed.

But that weekly rate is typically less than what they actually make, according to Jose Rivero, a longtime workers’ compensation attorney.Rivero, who used to do work compensation cases with immigrant farmworkers, said he believes many Venezuelans are scared to come forward. This worries him.“You have one body. This is it. And you’ve got to treat it because this is what is making you money,” he said.

For five months, Antuna slowly recuperated his knee to a point where he could walk again. His orthopedic surgeon cleared him to return to work on March 21, according to medical records.

‘The only breadwinner’

Venezuelans escaping economic ruin and government prosecution in their country of origin have accounted for many of the arrivals in Chicago. Unlike immigrants from Mexico and Central America who have come to the United States in the past, most Venezuelans do not have a network of support.

“I’m the only breadwinner of my family here in Chicago,” Antuna said.

Antuna was a welder in Venezuela before his company folded under the country’s far-left president, Nicolás Maduro. Antuna said after he was laid off, he moved home and started raising pigs at his house in the central western state of Yaracuy.

He signed a contract with the federal government, under the impression that he could sell his pigs at subsidized prices in exchange for material goods to keep his farm going. But he said the government took all of his pigs and didn’t provide the benefits it had agreed upon.

Officials came to his little farm three times and demanded more from him each time. When he refused, he said they retaliated.


“The third time, they hit my wife. She had my daughter in her arms,” he said. “They took everything. Everything I had worked for. Me quitaron todo.”

He and his wife filed a report against the government, which didn’t sit favorably with officials. They were facing death threats from the government, he said.

Antuna’s family, at the urging of his mother, had to leave their home. He left behind his mother and godfather, his grandkids and siblings, and everything they knew.

‘I wish I could just have avoided all of this’

Antuna’s family arrived in Chicago in late July and was staying at the Inn of Chicago in Streeterville when the first injury occurred later that November while working at the car wash, he said.

After months of healing, he was eager to save up to pay for housing on his own. In March, Antuna started working at a stand in the Swap-O-Rama flea market in the Back of the Yards neighborhood. He worked for a friend, he said, and would take two buses to get there in the morning. “I was feeling pain, but I could still walk. I could work,” he said.He and his family moved into an apartment in Chicago Lawn in late April with a state-funded grant.

He said he was heading in the right direction. He had a stable job. His wife and daughter were getting used to the neighborhood.But on May 25 around 5:30 p.m., his boss’s wife — who had recently found out that her husband was cheating on her — got into her car in a fit of jealousy. Antuna was standing in the parking lot between the couple. According to a police report, she was trying to “either hit or scare” her husband. But she allegedly turned the wheel abruptly and hit Antuna instead, in the same knee he had injured months earlier.

Antuna was transferred to Holy Cross Hospital and officers opened an investigation.

When he left the hospital, he was on crutches. He was back to square one — frantically looking for legal solutions and recourse. His boss at Swap-O-Rama stopped answering his calls. He requested video footage of the incident from the Swap-O-Rama manager but got no response. “I wish I could just have avoided all of this,” he said, crying.The Tribune reached out to a Swap-O-Rama spokesperson, but didn’t receive a response.

Moving forward

Antuna knew he had no choice but to move forward. He found a second lawyer for his latest injuries and started a new round of physical therapy.Taylor Unterberg, the personal injury attorney handling Antuna’s new case at Swap-O-Rama, said the car accident, classified as aggravated battery, is a pending civil and criminal matter. Unterberg could provide no other details other than that person injury cases typically take months to finish. “Until someone is done with treatment, or at the very end of treatment, we can’t place a value on a case,” she said.

While his cases are ongoing, Antuna passes his days resting his knee and attending his physical therapy appointments in Logan Square. The two buses to get there take over an hour.He worries about meeting his monthly rental payments. His wife has had little success looking for work, and she also has to help him care for their toddler.

When he calls the police station to check on the status of the investigation, there is rarely anyone there who speaks Spanish.

Unterberg said that while she does not ask for the immigration status of her clients, she has seen more Spanish-speaking people in her practice over the past few years. Out of the firm’s 23 employees, only about four or five speak Spanish. Nicole Hallett, director of the Immigrants’ Rights Clinic at the University of Chicago Law School, said Antuna likely qualifies for a U visa, which allows crime victims and certain family members to apply for lawful permanent residence after three years. But this requires someone like Antuna to know how to apply.

“It’s really important that police departments make information available for noncitizens so that they know to make the request,” Hallett said.

At some point, while he waits for his second case to wrap up, Antuna believes it’s likely he’ll have to beg on the street.

“My dream, everything I had hoped and planned for in the United States, it all went away with this accident,” he said, on a recent bus trip to therapy.

On the way there, he adjusted his leg on the bus and flinched. He called the police and asked for a Spanish speaker. They hung up on him.


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