Undocumented Alien in a Pa. Work Injury Case

Date: July 9, 2015

Typically, an injured workers status as an undocumented alien worker will not preclude him from receiving disability benefits under the Pennsylvania Workers’ Compensation Act. However, in situations where it is established that the injured worker/undocumented alien is capable of performing some work- even at the most sedentary level capacity- the employer is entitled to a suspension of wage loss benefits by reason of the injured worker’s undocumented status. The rationale behind this rule is that the injured worker’s loss of earning power is a result of his non-documented immigration status, not his work-related injury. The Pennsylvania Supreme Court addressed the issue of what burden the employer has in establishing an injured worker’s undocumented alien status. In Kennett Square Specialities v WCAB (Cruz), the claimant (Cruz) filed a claim petition alleging that he suffered a work-related injury to his lower back. The employer denied the claim. At a hearing before a workers compensation judge, the claimant testified regarding his alleged injury. On cross-examination, counsel for the employer asked the claimant whether he was a naturalized citizen and if he was an undocumented worker. Claimant refused to answer these questions asserting his privilege against self-incrimination. Both sides presented medical testimony which agreed that the claimant was capable of performing some level of employment and was not totally disabled. In issuing his decision on the claim, the judge granted the claim petition finding that Claimant became partially disabled when he sustained a work-related injury to his lower back. The judge ordered the employer to pay claimant’s reasonable and necessary medical expenses relating to the work-related injury. However, the judge suspended the claimant’s wage loss benefits as of the date of injury based upon the finding that the claimant was an undocumented alien worker. The judge noted that he drew an adverse inference from the claimant’s refusal to answer the employer’s questions regarding his immigration status. The claimant appealed. The Pennsylvania Supreme Court determined that the adverse inference drawn by the workers’ compensation judge (WCJ) from Cruz’s assertion of his Fifth Amendment right against self-incrimination – in response to questioning from employer’s counsel- did not, in and of itself, constitute substantial evidence that supported the WCJ’s finding that Cruz was not a United States citizen, was not authorized to work in this country and that his workers compensation benefits should be suspended. The Court also ruled that the claimant’s invocation of his Fifth Amendment right against self-incrimination did not relieve the employer of their burden to present independent evidence regarding his citizenship status and his eligibility for employment. Since the employer presented no other evidence in the record regarding Cruz’s employment eligibility status, any inference drawn by the WCJ from claimant’s assertion of his Fifth Amendment right in response to questions on this topic deemed as too speculative.

If you’ve suffered a work injury and have questions about your claim, contact me at tcummings@dlplaw.com or call (570) 347-1011 for a free consultation.



Disclaimer: The above article is for instructive purposes only and each case is fact sensitive.  Consultation with an attorney should be obtained instead of reliance upon the legal issues discussed in this column. 

Tom Cummings
Thomas P. Cummings has been a Partner with Dougherty Leventhal & Price, LLP since 1996 and has been with the firm since 1991. He focuses his practice on workers’ compensation, Social Security Disability and personal injury cases.