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Appeals court hears injured worker's bid for lost earnings

January 6, 2016

An attorney for a Mexican man who's seeking lost future earnings for a workplace back injury told the Indiana Court of Appeals on Wednesday that his client should be allowed to pursue those wages at U.S. pay rates instead of rates in his home country.

Noe Escamilla, 29, sued Indianapolis-based construction company Shiel Sexton for lost future wages after he slipped on ice in December 2010 and severely injured his back while helping lift a heavy capstone onto a masonry column at Wabash College.

Court documents say a doctor found Escamilla's injury left him unable to lift more than 20 pounds, effectively ending his career as a masonry laborer.

"If you're a construction worker and you can't lift more than 20 pounds, you're not going to get a job," said Escamilla's attorney, Timothy Devereux.

Escamilla is asking the appellate court to overturn a Montgomery County court's ruling last year, which was in favor of Shiel Sexton and found that two witnesses who reviewed Escamilla's U.S. tax returns could not testify about his lost future earnings in the trial on his tort claim.

That trial is on hold until three-judge court rules on that matter and Shiel Sexton's plans to raise Escamilla's immigration status during trial.

Shiel Sexton attorney John Mervilde told the court that the company wants to introduce evidence he said shows Escamilla fraudulently landed his job with a masonry company that was doing work at the Wabash College job site where Shiel Sexton was the general contractor.

Mervilde said the case is one "where a plaintiff has obtained a job by relying on false documents or someone else's documents."

Because Escamilla is a lawful resident of Mexico, Mervilde said any lost wages he is able to claim should be based on the rate of pay available in Mexico, and not U.S. wages.

Judge Melissa Mays asked Devereux during Wednesday's hearing whether Escamilla had used a "fake Social Security number" in landing his masonry job after he traveled to the U.S. with his family as a teenager.

Devereux conceded that that was the case. But he said that while his client may have been in the country without legal permission at the time that he was injured, that is no longer the case. He said Escamilla filed paperwork in 2014 seeking permanent U.S. residency, is married to a U.S. citizen and has three children who are U.S. citizens.

He said there's no evidence Escamilla faces an immediate threat of deportation and that he's likely to eventually win residency.

Devereux added that allowing into trial discussion of Escamilla's immigration status would be "extremely prejudicial" and could sway the jury when the case should be about his lost earnings.

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