Undocumented Resident In A Workers Compensation Case

Date: August 14, 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 based upon the presumption that an undocumented alien cannot work in this country and the injured worker’s loss of earning power is a result of his non-documented immigration status, not his work-related injury.

What burden of proof must an employer show to establish an injured worker’s undocumented alien status? The Pennsylvania Supreme Court addressed the issue in Cruz v. WCAB (Kennett Square Specialties). The facts of the case indicate that 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 Commonwealth Court framed the issue as follows: Since the judge’s determination that the claimant was an undocumented alien was based solely upon the adverse inference that the judge drew from the claimant’s refusal to answer the employer’s questions regarding his immigration status, is this adverse inference, alone, sufficient to support the finding that the claimant’s wage loss benefit entitlement should be suspended based upon his undocumented alien status? The Commonwealth Court noted that an adverse inference cannot serve as substantial evidence to support a finding of fact because an adverse inference does not constitute evidence. The Court thus determined that while the judge did not necessarily err in drawing an adverse inference from the claimant’s refusal to testify regarding his immigration status, the judge did err in relying solely on that adverse inference in finding that the claimant was an undocumented alien.

The employer filed an appeal to the Pennsylvania Supreme Court. The Court, in addressing the “adverse inference” drawn by the workers’ compensation judge (WCJ) from Cruz asserting of his Fifth Amendment right against self-incrimination in response to questioning from his employer’s counsel. The Court has ruled that Cruz’s invocation of the Fifth Amendment did not, by itself, constitute substantial evidence to support a suspension of benefits.  The claimant’s invocation of his Fifth Amendment right against self-incrimination did not relieve employer of their burden to present independent and probative evidence regarding claimant’s citizenship status and his corresponding employment eligibility. Since employer presented no other evidence into the record regarding claimant’s employment eligibility status, any inference drawn from claimant’s assertion of his Fifth Amendment right in response to questions on this topic was found to be “too speculative” and the Commonwealth Court’s decision denying the employer’s suspension request has been affirmed.

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.

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.

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.