With immigration a hot topic, the Pennsylvania Commonwealth Court recently handed down the latest reminder that the Pennsylvania Workers' Compensation Act affords relief even for alleged undocumented workers. On Oct. 18, the court decided Bryn Mawr Landscaping v. Workers' Compensation Appeal Board (Cruz-Tenorio), No. 1268 C.D. 2018 (Pa. Cmwlth. 10/18/2019), revisiting the intersection of Pennsylvania workers' compensation and immigration law. While Bryn Mawr Landscaping addressed more than just immigration issues with creative lawyering by both sides, the message is clear: the management of the exposure to a workers' compensation claim based even in-part on an individual's legal work status has its limits. However, employers, insurers and counsel should not ignore a worker's status either.

One fundamental threshold for obtaining workers' compensation benefits any injured worker faces is his or her establishment of an employer and employee relationship at the time of injury. Claims handlers, injured workers and even attorneys probing the compensability of a claim at its outset might ponder when the issue of a claimant's potential illegal work status arises: if the claimant was not authorized to work in the United States, is that in and of itself a bar to compensation? For those unfamiliar, an "unauthorized alien" qualifies as an employee who may be eligible for compensation just like any natural citizen, as in Reinforced Earth v. Workers' Compensation Appeal Board (Astudillo), 810 A.2d 99 (Pa. 2002).

But if an injured immigrant is an "employe" within the act, then why do and why should employers and insurers raise the issue?

A claimant seeking workers' compensation benefits must establish that he was injured while in the course of employment and that the injury resulted in a loss of earning power. When there is a question of legal work status, the claimant does not have to establish his or her eligibility to lawfully work in the United States at the time of injury in order to be eligible for benefits. Simply put, the issue is irrelevant in this context, as held in Cruz v. Workers' Compensation Appeal Board (Kennett Square Specialties), 99 A.3d 397 (Pa. 2014).

Despite the above, two points show why an immigrant's work status remains relevant.

First, burdens of proof do not remain static, whether one, two or several petitions are pending before a workers' compensation judge (WCJ) in litigation. For example, in a claim petition proceeding where the employee is seeking denied benefits, once the employee has demonstrated a loss of earning capacity due to a work-related injury, the employer can still defend against payment of ongoing wage-loss benefits. However generally, the employer then has to show that work is available within the employee's restrictions, as in Vista International Hotel v. Workers' Compensation Appeal Board (Daniels), 742 A.2d 649 (Pa. 1999).

Secondly, creative lawyers understand, work with and when appropriate, challenge the elements required to prove or disprove to win a case. Every workers' compensation practitioner has or should have at least heard of Kachinski v. Workers' Compensation Appeal Board (Vepco Construction), 532 A.2d 374 (Pa. 1987), which set forth that in a proceeding to suspend a claimant's indemnity benefits, an employer must demonstrate evidence of a change in medical condition and job availability. Then, the claimant must demonstrate he followed through on the job referral in good faith, and if the referral failed to result in a job, wage-loss benefits should continue.

The Reinforced Earth court recognized, upon good lawyering, that rigid application of formulas like the Kachinski equation makes no sense if the application were illogical or the result were absurd. It recognized, where there is no dispute a claimant is an unauthorized alien, that he cannot apply for or accept lawful employment. In these circumstances, there would be no point in requiring an employer seeking a suspension to show that jobs were available to a claimant. When the employer seeks to suspend the wage-loss benefits of an unauthorized alien, the employer does not need to prove job availability. Therefore, it is appropriate for employers, insurers and counsel to consider, and if necessary, raise an injured worker's immigration status in workers' compensation proceedings. After all, it can be easier, quicker and less costly to prove two elements versus three.

Turning to Bryn Mawr Landscaping, the Commonwealth Court revisited the intersection of Pennsylvania workers' compensation and immigration, in yet another battle over the burdens of proof and elements of each side's case. In Bryn Mawr Landscaping, a citizen of Mexico was injured on May 15, 2015, when a tree branch struck his head breaking protective equipment. Employer testimony established that the claimant was one of multiple workers it sponsored each year authorized to work in the United States by an H-2B visa from April to December. An H-2B visa allows a foreign national to work in the United States to fill temporary, nonagricultural jobs, provided specific regulatory requirements outside the scope of this article are met. The court clearly followed the precedent set forth via Kennett Square Specialties, rejecting the employer's argument that the claimant should have to prove, as part of his claim petition, that he could lawfully work in the United States. For now, practitioners are reminded that a claimant's eligibility to lawfully work in the United States is not of relevance when establishing an entitlement to Pennsylvania workers' compensation in the first place.

The court also rejected Bryn Mawr Landscaping's alternative argument that the claimant's indemnity benefits should have been suspended in light of its question surrounding the claimant's lawful work status in the country. That is, defense testimony in the case established the claimant had been working legally in the United States pursuant to his H-2B visa when he sustained his work-related injury, and that the employer's president believed but was not sure that the claimant's visa had since expired in December 2015. In conjunction with WCJ credibility and factual determinations establishing that the claimant remained unable to return to work as of the close of the evidentiary record, the court agreed the employer did not meet its burden of proving the claimant's loss of earning power was attributed to something other than his work injury.

Bryn Mawr Landscaping shows creative lawyering comes with benefits but also risks. The court upheld a granting of litigation costs and an underlying unreasonable contest attorney fees award, as well as directed for submission of an additional bill of costs for this latest appeal.

While it remains to be seen if this employer will further appeal, whether on the immigration or nonimmigration issues, one thing is clear: Employers, insurers and counsel going forward cannot simply ignore a worker's status, when the claimant who is being investigated had immigrated under questionable circumstances to the United States. After all, even if the employer must pay benefits at the outset of the claim, there remain advantages to raising an illegal work status argument. Why? To suspend wage-loss benefits, an employer need only demonstrate a claimant has improved enough to work at some job, even a part-time job with restrictions. The employer does not have to show job availability or the ability to return to the pre-injury position, see Ortiz v. Workers' Compensation Appeal Board (Rodriguez), 60 A.3d 209 (Pa. Cmwlth. 2013) and Mora v. Workers' Compensation Appeal Board (DDP Contracting), 845 A.2d 950 (Pa. Cmwlth. 2004).

Of course, employers and insurers need credible and persuasive evidence presented through an experienced practitioner to rely upon an immigration concern. A doubt or suspicion is not enough. The employer witness in Bryn Mawr Landscaping did not actually have knowledge of the claimant's work status following the compensable injury. Further, that WCJ credited the claimant's expert testimony that the claimant could not return to work in light of ongoing neurologic concerns. Therefore, the employer could not show that a factual loss of earning power was unrelated to the claimant's original work injury versus an illegal work status. If the circumstances varied, perhaps the outcome would have been different.

James R. Bucilla II, an associate at the Philadelphia office of Weber Gallagher Simpson Stapleton Fires & Newby, represents employers, insurers and third-party administrators in Pennsylvania workers' compensation matters. Contact him at [email protected].