Earlier this month, the Pennsylvania Commonwealth Court reported the decision of Bryn Mawr Landscaping v. Workers' Compensation Appeal Board (Cruz-Tenorio), which brought the issue of injured, potentially undocumented workers back into focus. Given the current political climate, the topic takes on a certain relevance that warrants revisiting the issue.

As is well known, the seminal case dealing with the rights of undocumented workers who are injured on the job is the 2002 Pennsylvania Supreme Court case of Reinforced Earth v. Workers' Compensation Appeal Board (Astudillo). In Reinforced Earth, the court held that a claimant's status as an undocumented worker does not preclude him from bringing a workers' compensation claim and otherwise receiving disability benefits under the Pennsylvania Workers' Compensation Act. However, the court essentially created a right for an employer to obtain a suspension of those benefits if it is able to show that the claimant is capable of performing any type of work at all. Normally, an employer would have to demonstrate job availability under Kachinski v. Workers' Compensation Appeal Board (Vepco Construction) to obtain a suspension of indemnity benefits. That requirement was removed vis-a-vis undocumented workers under Reinforced Earth based on the notion that an undocumented worker cannot legally accept work in this country. Consequently, the injured worker's immigration status would become the actual cause of the loss in earning power, as opposed to the work-related injury. The only reason the court tempered its holding was that it did not want employers to be free from workers' compensation liability merely through employing undocumented workers. Otherwise, the court may have denied compensation to an injured worker, entirely.

The 2013 case of Ortiz v. Workers' Compensation Appeal Board (Rodriguez and U.E.G.F.), which I like to refer to as Reinforced Earth on steroids, supports the notion that not only does an employer not need to demonstrate job availability as was held in Reinforced Earth, but it also does not even need to demonstrate a change in the claimant's physical condition. In Oritz, the Commonwealth Court found that the injured worker's loss of earning power was caused by his immigration status once his work injury healed to the point where he was able to return to work in a part-time capacity.

Finally, in the 2014 case of Kennett Square Specialties v. Workers' Compensation Appeal Board (Cruz), the Supreme Court held that in order to obtain a suspension of indemnity benefits, it is the employer's burden to demonstrate that a loss in earning power of an injured worker is due to his lack of legal work authorization, rather than the work-related injury. Also, Cruz held that an adverse inference, without any evidence, was not sufficient to demonstrate undocumented status. Cruz mentions in a footnote the proof problem faced by employers. The court appealed to the federal Immigration Reform and Control Act (IRCA), which requires employers, at the time of hire, to verify an employee's identity and employment authorization status through an I-9 form.

This background takes us to the aforementioned Bryn Mawr Landscaping, where the workers' compensation judge (WCJ) granted an injured worker's claim petition and denied the employer's termination and suspension petitions. The primary issue in those determinations was the claimant's immigration status. The WCJ based her decision on the claimant's testimony and that of his doctors that were all found to be credible and persuasive to the exclusion of the employer's witnesses.

The claimant in Bryn Mawr Landscaping worked for a tree trimming and removal company and was struck in the head by a large tree branch, causing many injuries, including a concussion and post-concussive syndrome. The claimant filed a claim petition and the employer filed a termination petition to nullify a medical-only NCP it had filed, alleging that the claimant had fully recovered from his work-related injuries. Significantly, the employer also filed a "protective" suspension petition seeking, as "lesser included relief," a change in the claimant's status to partially disabled because he could not lawfully work in the United States.

The claimant testified as to his job duties and injury before the WCJ, but other than identifying himself as a citizen of Mexico, did not address his immigration status with any degree of specificity. The claimant also offered the testimonies of a neurologist and an orthopedic surgeon in support of his claim, both of whom supported the claim and subsequent disability.

The employer presented the deposition testimony of its president, who testified that they employed workers every year who held H-2B visas, from April through December. He further elaborated that he did not know the claimant's immigration status after the date of injury. While the employer also presented two medical witnesses, they were found not to be credible.

In granting the claim petition and denying the employer's termination and suspension petitions, the WCJ found the claimant's testimony credible and persuasive that he was not able to return to work. Also, while the WCJ found that the claimant was authorized to work in the United States on the date of the injury due to the H-2B visa, she made no finding as to his immigration status, thereafter. It would appear there was no evidence of record on the issue, which ultimately factored into the Commonwealth Court's decision.

The Workers' Compensation Appeal Board affirmed the decision of the WCJ. On appeal to the Commonwealth Court, the employer raised a number of issues, two of which are relevant to this discussion. First, the employer argued that the claimant did not sustain his burden of proving his entitlement to benefits "because he offered no evidence that he can lawfully work in the United States." Second, the employer argued that, even if the claimant were entitled to benefits, the WCJ erred in denying its suspension petition because the record showed the claimant's work visa had expired and he was physically capable of returning to sedentary work.

Regarding the first issue, the court started with the basic concept that a claimant seeking workers' compensation benefits must establish: he was injured while in the course of employment, and the injury resulted in a loss of earning power. The court actually emphasized this basic fact by quoting a Supreme Court case to support this proposition. The court also quoted the above-referenced Cruz decision, also a Supreme Court case, as follows:

"Inasmuch as these are the only two things a claimant is required to demonstrate in order to successfully maintain a claim petition and obtain compensation for wage loss and medical treatment costs under the act, a claimant's eligibility to lawfully work in the United States is not a relevant consideration in establishing either of these factors."

The Bryn Mawr Landscaping court was emphasizing that the claimant's citizenship status was not relevant to his eligibility for benefits. The court stated: "simply, the employer's argument on the claimant's ability to work in the United States lacks merit."

Dealing with the employer's second issue, that the WCJ erred in denying its suspension petition, the court turned to the facts as accepted by the WCJ. While the employer asserted that it met its burden for a suspension of benefits because the claimant's loss of earning capacity is attributable to his immigration status, the employer never proved this and even incorrectly suggested the burden was on the claimant to show he was legally entitled to work in the United States following the date of his injury.

The court noted that while it is true that a claimant's benefits can be suspended if his loss of earning capacity is related to something other than the work-related injury, this is the employer's burden. In Bryn Mawr Landscaping, the employer simply did not establish that the claimant was an undocumented alien worker and that his loss of earning power was caused by his immigration status.

While the employer also asserted that the claimant was capable of returning to work, and therefore not able to collect workers' compensation benefits due to his immigration status, the court noted that the WCJ found that the employer offered no credible evidence that the claimant was capable of working in any capacity. The WCJ did not find either of the employer's witnesses credible regarding the return-to-work issue, and only one of the claimant's doctors though the claimant could work in some capacity.

Although Bryn Mawr Landscaping does not alter workers' compensation law pertaining to undocumented workers in any way, the court deviated from its recent practice of reporting very few workers' compensation decisions for a reason. It seems that the court seeks to emphasize that immigration status is not an adequate defense to a claim petition. Moreover, innuendo and bald assertions will not carry the day in seeking to suspend benefits at a later date, either.

Christian Petrucci, of the Law Offices of Christian Petrucci, concentrates his practice in the areas of workers' compensation and Social Security disability. He also counsels injured workers in matters involving employment discrimination and unemployment compensation benefits.