New York State’s top court will consider today if illegal immigrant workers can recover for lost wages, in a case that is being carefully followed by immigration lawyers and advocates around the country.

In 2004 a state appellate court came up with a novel response to the question in two cases where illegal immigrants injured on construction sites pressed for financial compensation: The panel ruled the immigrants should be granted lost wages based on rates in their native countries.

In the case the Court of Appeals will hear today, Gorgonio Balbuena v. IDR Realty, the lower court determined that Mr. Balbuena, an illegal immigrant from Mexico, was “not entitled to recover lost earnings damages based on the wages he might have earned illegally in the United States.” Rather than say Mr. Balbuena, who was severely injured on the site as a construction laborer in 2001, should be denied compensation, the court determined that he should receive what he could earn in his home country, “since an award based on a prevailing foreign wage would not offend any federal policy.”

At issue is whether awarding damages for lost earnings in tort cases preempts the goal of the 1986 Immigration Reform and Control Act, which prohibits companies from employing illegal immigrants. The Supreme Court determined in the 1982 case Plyer v. Doe that illegal immigrants have the same basic legal rights as citizens and that no state shall “deny to any person within its jurisdiction the equal protection of the laws.”

However, a more recent decision, in Hoffman Plastic Compounds Inc. v. NLRB, found that, based on the 1986 law, back pay should not be awarded to an illegal immigrant “for years of work not performed, for wages that could not lawfully have been earned, and for a job obtained in the first instance by a criminal fraud.”

In the Balbuena case, the defendant maintains it should not pay any back wages, because the work was gained through illegal activity. The plaintiff, on the other hand, is not satisfied with being awarded compensation equivalent to lost wages in Mexico, which would equal but a small fraction of his lost earnings in New York.

Immigration advocates say using the Hoffman precedent in this trial misconstrues its purpose and violates state law, which does not distinguish between legal and illegal immigrant employees. Attorney General Eliot Spitzer, whose office has aggressively advocated for illegal immigrants’ labor rights, has joined their side, and a representative from his office will testify as an “Intervenor-Appellant.”

Attorney Brian O’Dwyer, whose office won more than $3 million in a settlement last year for an illegal Mexican construction worker hurt on the job, warned the case could create a dangerous precedent that could affect millions of New Yorkers.

“Until now, we have said those who don’t have papers have the same rights in the courts in America,” Mr. O’Dwyer, whose firm submitted a amici curiae petition in support of the plaintiffs, said in Spanish. “This case is the first such instance in New York, and that’s why it is important to see how we are going to treat our undocumented.”