State News : Pennsylvania

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By Kevin L. Connors, Esquire


This is the story of David Cruz, an undocumented worker, in Pennsylvania, who successfully secured an award of workers’ compensation benefits, with Cruz invoking his Fifth Amendment Right against self-incrimination, when questioned at the hearing before the Workers’ Compensation Judge as to his immigration status, with the Pennsylvania Supreme Court determining, in an Opinion authored on July 21, 2014, that the Commonwealth Court had correctly concluded that there was insufficient evidence of the Claimant’s alleged lack of legal authorization to be employed in the United States to support a suspension of the Claimant’s workers’ compensation benefits, as had been ordered by the WCJ.


The claim background was that the Claimant was injured on July 19, 2008, coincidentally my birthday, when he was working as a Truck Driver for Kennett Square Specialties, which owned and operated a mushroom farm in Chester County, Pennsylvania.


As the Claimant was loading 15-20 pound barrels onto his truck, he felt something snap in his low back.


The Claimant then notified his Employer, and began seeking treatment with an Employer-designated physician.


The Claimant was then diagnosed with a herniated disk.


Due to the severity of the Claimant’s injury, the treating physician did not release the Claimant to return to his normal work duty, but instead released the Claimant to work in a restricted-duty capacity, not allowing the Claimant to lift more than 15 pounds, and to undertake no work that would involve stretching, bending, or reaching.


Initially, the Claimant was paid temporary compensation benefits under a Notice of Temporary Compensation Payable.


The temporary compensation benefits were then stopped, with a Denial Notice being issued, followed by the Claimant filing a Claim Petition.


Under his Petition, the Claimant alleged that his injury was work-related, that it rendered him totally disabled, and that he could not perform his pre-injury job, such that the Claimant sought ongoing workers’ compensation benefits.


The Claim Petition was then assigned to a WCJ, with a timely Answer to the Petition having been filed.


In the course of the Claimant testifying before the WCJ, the Claimant was cross-examined by the Employer’s counsel, as to the Claimant’s immigration status. 


Although Claimant’s counsel objected to the Claimant being questioned regarding his citizenship status, the objection was overruled by the WCJ, with the Claimant, through counsel, invoking his Fifth Amendment right against self-incrimination, by refusing to answer the questions posed by the Employer’s counsel regarding the Claimant’s citizenship status.


In support of the Claimant’s claim of disability, the Claimant presented medical evidence as to his injury and disability, with the WCJ then issuing a Decision, under which the WCJ found that the Claimant’s injury was, in fact, work-related, and that his injury also rendered the Claimant partially disabled, although the WCJ suspended the Claimant’s disability benefits, in the course of which the WCJ held that the “Employer has met its burden to establish that Claimant was not a United States citizen, and that he was not authorized to work in this country.”


The WCJ’s Decision cited to the Pennsylvania Supreme Court’s Decision in Reinforced Earth v. WCAB, 810 A.2d 99 (Pa. 2002).


Suspending the Claimant’s disability compensation benefits, the WCJ nevertheless ordered the Employer to pay the Claimant’s medical compensation benefits.


The Claimant then appealed the WCJ’s Decision, suspending his wage loss compensation benefits, with the Pennsylvania Workers’ Compensation Appeal Board, in turn, affirming the WCJ’s Decision in part, although it also reversed the Decision with respect to the suspension of the Claimant’s compensation benefits based on the Claimant’s citizenship status.


As for the Claimant’s citizenship status, the WCAB held that a party cannot carry their burden of proof in any civil proceeding merely by relying upon an adverse parties’ failure to testify, finding that the Employer had not, therefore, met his burden of proof as to the Claimant’s citizenship status, in reliance solely upon an adverse inference created by the Claimant’s failure to answer the Employer’s counsel’s questions on the subject of his citizenship, holding that the adverse inference alone was not sufficient evidence to support the suspension of the Claimant’s compensation benefits.


So ruling, the Appeal Board reversed the WCJ’s Order suspending the Claimant’s disability compensation benefits, with the Employer then appealing that ruling to the Commonwealth Court.


Affirming the Appeal Board’s ruling, the Commonwealth Court held that the WCJ had properly treated the Employer’s defense of the Claimant’s Claim Petition as a request for a suspension of the Claimant’s compensation benefits, based upon the Claimant failing to document his citizenship status.


However, the Commonwealth Court held that the Employer carried its burden of proving that it was entitled to a suspension of benefits, and, by virtue of carrying its burden of proof, as the Employer had the burden of establishing the Claimant’s eligibility status for employment, rather than the Claimant being required to establish, in support of his Petition, that he held the necessary documentation of citizenship status to prove his employment eligibility.


The Court rationalized this holding by stating:  “the reason that an adverse inference cannot serve as substantial evidence to support a finding of fact is because an adverse inference does not constitute evidence.”


Concluding that an adverse inference was not evidence, it (the adverse inference) “does not count in calculating whether a party has met its burden in introducing substantial evidence.”


There being no other evidence in the record to support the WCJ’s conclusion that the Claimant was “undocumented”, in the course of the WCJ suspending the disability compensation benefits, the Commonwealth Court affirmed the Appeal Board’s reversal of the WCJ’s Decision suspending the Claimant’s disability compensation benefits.


The Employer petitioned for allowance of appeal to the Pennsylvania Supreme Court, which granted the appeal to determine three issues:


·                     That the Commonwealth Court erred in placing the burden of proof in a Claim Petition on the Employer, when the Claimant failed to establish his ongoing entitlement to benefits by providing information on his documented status to the Employer and to the Court?


·                     Did the Commonwealth Court err in failing to consider its own holding inBrehm v. WCAB, 782 A.2d 1085 (Pa. Cmwlth. 2001), holding that a Claimant who refuses to provide either the Court or his Employer with information necessary to make a determination, may have his workers’ compensation benefits suspended until such information is provided?


·                     Did the Commonwealth Court err in concluding that the Workers’ Compensation Judge’s Decision was not supported by substantial competent evidence where the record, in its totality, together with an adverse inference, does support the contention that the Claimant is an undocumented worker, thereby entitling the Employer to a suspension of benefits?


Analyzing these issues, the Pennsylvania Supreme Court, in an Opinion authored by Madam Justice Todd, held that the case required the Supreme Court to determine the proper allocation of the burden of proof between the parties, in terms of whether the Claimant had to prove his legal status for employment eligibility, or that burden should have shifted to the Employer to prove that the Claimant was ineligible for employment, as an undocumented immigrant.


The Supreme Court held that once the Claimant establishes an entitlement to an award of benefits, the burden then shifts to the Employer to prove that employment is available within the Claimant’s work restrictions.


In Cruz, the Supreme Court concluded that the Claimant had proven that his injury was work-related, and that it was disabling, thereby entitling the Claimant to an award of workers’ compensation benefits, with the burden of proof then shifting to the Employer to prove why the Employer would have been entitled to a suspension of compensation benefits, under the authority of its Decision inVista Int’l. Hotel v. WCAB, 742 A.2d 649 (Pa. 1999).


Affirming the reversal of the WCJ’s suspension of the Claimant’s compensation benefits, the Supreme Court held that the Employer bore the burden of proving that the Claimant was ineligible to work in the United States, and that the only “evidence” of the Claimant’s ineligibility for employment was the Claimant’s invocation of his Fifth Amendment right against self-incrimination, which, alone, was insufficient to constitute the necessary substantial competent evidence to support a WCJ’s finding that the Claimant was not a United States citizen, and was not otherwise authorized to work in the United States.


Justices Baer and McCaffery joined in the Majority Opinion.


Justice Saylor filed a Concurring Opinion, joined by Chief Justice Castille.


Justice Eakin filed a Concurring and Dissenting Opinion, joined in by Justice Stevens.


While concurring with the Majority Opinion, Justice Saylor took a very different approach, in analyzing the adverse inference bubbling to the surface from the Claimant’s invocation of his Fifth Amendment right against self-incrimination, with Justice Saylor deferring to the Judge’s fact finding function to “draw reasonable inferences from basic facts to ultimate facts”, such that Justice Saylor would not conclude that the Claimant’s refusal to answer the question posed regarding his citizenship status carried “no evidentiary value”, in reliance upon the U.S. Supreme Court having observed, merely as a general precept, that refusals to answer, in non-criminal settings, and in reference to questions regarding potential criminality, can constitute “relevant facts” that might be considered in the interest of improving the chances for accurate Decision. Baxter v. Palmigiano, 425 U.S. 308 (U.S. 1976).


Who knew?


I am, therefore I must be compensated!


And who has not thought that?


In Justice Saylor’s view, the record before the WCJ did not indicate that the Claimant had refused to answer the citizenship status questions posed by Employer’s counsel, rather the record merely indicated that Claimant’s counsel interposed a timely objection to the pending question, after which Employer’s counsel never pursued finality with regard to those questions, with Justice Saylor indicating that the objections alone were insufficient to invoke the Fifth Amendment privilege on the Claimant’s behalf, as that privilege must be personally invoked, meaning that the witness must make a declaration invoking the privilege, for the privilege to even exist.


Anyone find that even remotely interesting?


What might be even more interesting is Judge Saylor’s discussion of the need to reconsider “the soundness ofReinforced Earth’s determination that a workers’ immigration status alone can present a lack of earning power for purposes of an Employer’s request to suspend benefits, so as to relieve the Employer of the burden to demonstrate physical recovery from the injury”, with Justice Saylor citing to a Nebraska Decision, in Moyera v. Quality Pork International, 825 N.W.2d 409 (Neb. 2013), a slightly overcooked tenderloin, which had referred to other Courts that had allowed benefits, concluding that “even if undocumented Employees cannot legally work in the United States, they could have worked elsewhere, but for their work-related injury”, citing also to an Illinois Decision inEconomy Packing Company v. Ill. Workers’ Comp Comm’n, 901 N.E. 2d 915 (Ill. Ct. App. 2009).


 So when do the Cruz ships dock?


A slippery slope indeed!


Justice Saylor’s Concurring Opinion was joined in by Chief Justice Castille, with Justice McCaffery joining in on the Concurring Opinion of Justice Saylor as to the necessity of re-examiningReinforced Earth.




·                     Concurring and dissenting, Justice Eakin concurred with the Majority Opinion that the Claimant had sustained his burden of proving a work-related injury resulting in wage-loss producing disability, although Justice Eakin dissented, yielding to “congressional policy that was unauthorized aliens… violating Federal law… in obtaining employment by allowing them to participate in a social insurance scheme for Pennsylvania workers.”  Citing toReinforced Earth.


·                     Justice Eakin agreed with the Majority Opinion, as well as the Concurring Opinion of Justice Saylor, that the Claimant had sustained his burden of proving that he had sustained a work-related injury resulting in wage-loss producing disability.


·                     However, Justice Eakin did not agree with the Majority and/or Concurring Opinions, that the burden of proof as to a Claimant’s immigration status should shift from the Claimant to the Employer, as Justice Eakin believed that once the Claimant’s immigration status becomes an issue, that the Claimant would carry the burden of proving that he was legally entitled to work in the United States, as a prerequisite to obtaining benefits under the Pennsylvania Workers’ Compensation Act.


·                     Finding that the Claimant failed to do so, by refusing to testify regarding his immigration status, Justice Eakin would reverse the Order of the Commonwealth Court, with Justice Stevens joining in Justice Eakin’s Concurring and Dissenting Opinion.




So where does Cruz leave us?


Well, some things are now clear.


First, there can be no assumption that the refusal to answer a question necessarily creates an adverse inference sufficient to constitute substantial competent evidence supporting the findings or conclusions of a WCJ.


Next, it is also clear that the Cruz ruling is important in terms of the balancing of public policy interests, and is not, therefore, merely the highest Court in Pennsylvania rubber-stamping Decisions by lower Courts as to the compensation benefit entitlement of undocumented immigrants.


Cruz is an attempt by the Pennsylvania Supreme Court to balance two competing public policy interests, the first being that the Pennsylvania Workers’ Compensation Act is the statutory framework for determining the compensability of work-related injury, while the second public policy interest being considered by the Cruz Court is whether the first public policy interest, being the correct application of the law governing remedies for work-related injuries, necessarily needs to be considered against whether workers who have broken Federal immigration laws, effectively “creating” the absurd result of supplying social welfare benefits in the form of a wage and employment-benefit substitute to one whom Federal law says could not lawfully obtain those wages and benefits in the first place, should still be entitled to be awarded the benefits.


In the absence of a definitive intersection between public policy concerns over the interplay between Workers’ Compensation and Federal Immigration Laws, it remains true in Pennsylvania that illegal/undocumented workers sustaining work-related injuries will be entitled to receive workers’ compensation benefits, if substantial competent evidence of the occurrence of their injury and its resulting wage-loss producing disability is presented to the WCJ, with Employers, underCruz, being required to present substantial competent evidence of the Employee’s citizenship status, if the Employer seeks a suspension of compensation benefits, limited to the wage loss benefits, in defense of a Claim Petition for workers’ compensation benefits by an undocumented worker.


Several salacious words come to mind to pin this tale to the donkey, as the Cruz ruling, while technically correct, nevertheless leaves us feeling cheated.


Time to tighten the borders!


ConnorsLaw LLP


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