A claimant’s immigration status is an important factor in determining the extent of disability benefits allowed after the injured worker has partially recovered. Under a prior Pennsylvania Supreme Court decision, undocumented alien status will not prevent an employee from receiving workers’ compensation benefits, however, in the event of a partial medical recovery, benefits may be suspended without proof of job-availability because such employment would be technically illegal. See Reinforced Earth vs. W.C.A.B. (Astudillo), 810 A.2d 99 (Pa. 2002).
The question then became what an employer must show to prove undocumented alien status in order to take advantage of the reduced burden of proof in partial recovery cases. The Pennsylvania Supreme Court has partially addressed that issue in Cruz vs. W.C.A.B. (Kennett Square Specialties and PMA Management Corporation), 69 MAP 212 (Pa. June 23, 2014). In deciding a Claim Petition case, the Workers’ Compensation Judge awarded workers’ compensation benefits, but limited disability benefits after finding the employee partially disabled based upon his determination that the employee was not a United States citizen and that he was not authorized to work in this country. Essentially, the Workers’ Compensation Judge reached this determination by adverse inference from the employee’s refusal to answer questions about his immigration status after invoking his Fifth Amendment right against self-incrimination. The Workers’ Compensation Judge was reversed upon appeal and ongoing benefits were allowed.
In Cruz, the Pennsylvania Supreme Court determined that, even in a Claim Petition case, the employer bears the burden of proving the employee’s immigration status in order to try to limit disability benefits. The employee need not prove he is legally entitled to work in this country in order to qualify for benefits. The Cruz Court also rejected the employer’s argument that employee’s refusal to testify regarding his immigration status provided substantial evidence to support a conclusion that he was an undocumented worker. On the contrary, the Court held that while this refusal to answer questions may create an adverse inference, that alone did not constitute sufficient evidence necessary to support a finding of fact.
The import of Cruz is that there must be independent evidence of employee’s immigration status as an undocumented worker to gain a suspension without proof of job availability. The Cruz Court determined that because the employer presented no such independent evidence in this case, the employee’s disability benefits could not be suspended. The Court did not indicate what kind of evidence would be sufficient to prove undocumented status. That remains an open question for another day.
It would appear the employer is in a “Catch 22” situation when it comes to producing independent evidence of immigration status. The employees can refuse to testify; immigration officials are not subject to subpoena and employers will likely refuse to testify as they may face criminal sanctions, if there were irregularities in hiring an undocumented worker. Perhaps the best approach is to see if a suspension can be agreed to and a supplemental agreement executed that will note the employee’s wage loss is no longer related to the work injury. This avoids the confrontation at a hearing which may just induce an employee to agree to this route.
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