Adverse Inference Insufficient to Prove Undocumented Alien Status

Last month, the Pennsylvania Supreme Court issued its long-awaited decision in Cruz v. Workers’ Compensation Appeal Board (Kennett Square Specialties), No. 69 MAP 2012 (decided July 21, 2014). In it, the court affirmed the 2011 Commonwealth Court decision that held that it is the employer’s burden to prove whether a loss in earning power of an injured worker is due to his lack of U.S. citizenship or other legal work authorization, rather than the work-related injury, in order to obtain a suspension of his indemnity benefits. Additionally, the court upheld the lower court’s ruling that the claimant’s invocation of his Fifth Amendment right against self-incrimination when testifying in a workers’ compensation proceeding did not constitute substantial evidence of the claimant’s alleged lack of legal authorization to be employed in the United States. Specifically, the court agreed that the workers’ compensation judge erred in relying solely on the adverse inference taken in finding that the claimant was an undocumented alien and thus could not legally work in this country.

Given the significance of the decision, a review of the status of workers’ compensation law as it relates to an injured worker’s immigration status is warranted. That analysis begins with the seminal state Supreme Court case of Reinforced Earth v. WCAB (Astudillo), 570 Pa. 464, 810 A.2d 99 (2002), decided in 2002. Reinforced Earth reinforces the notion that an undocumented alien worker does not forfeit the right to receive disability benefits under the Workers’ Compensation Act simply due to his or her immigration status. To deny that right would offer an incentive to employers to hire undocumented aliens in an effort to avoid workers’ compensation liability. However, the case also held that where the employer can demonstrate that the claimant is capable of performing any work at all, the employer is entitled to a suspension of benefits without the need of showing job availability, as would be the case in any other return-to-work scenario short of full recovery. The court reasoned that since an undocumented alien cannot legally accept work in the United States, that individual’s loss of earning capacity becomes his immigration status and not his work-related injury the moment he is capable of any gainful employment at all. A vocational analysis would not be warranted since the injured worker would be precluded from taking any identified jobs in the first instance.