Scranton Moosic Work Injury- Workers Compensation

Posted by Tom Cummings & filed under Areas of Practice, DLP Law, Workers Compensation.


Typically, an injured workers status as an undocumented alien worker will not preclude him from receiving disability benefits under the Pennsylvania Workers’ Compensation Act. However, in situations where it is established that the injured worker/undocumented alien is capable of performing some work- even at the most sedentary level capacity- the employer is entitled to a suspension of wage loss benefits by reason of the injured worker’s undocumented status. Based upon the presumption that an undocumented alien cannot work in this country, the rationale behind this rule is that the injured worker’s loss of earning power is a result of his non-documented immigration status, not his work-related injury.
In a recent case, the Pennsylvania Commonwealth Court addressed the issue of what burden the employer has in establishing an injured worker’s undocumented alien status. In Kennett Square Specialities v WCAB (Cruz), the claimant filed a claim petition alleging that he suffered a work-related injury to his lower back. The employer denied the claim. At a hearing before aa workers compensation judge, the claimant testified regarding his alleged injury. On cross-examination, counsel for the employer asked the claimant whether he was a naturalized citizen and if he was an undocumented worker. Claimant refused to answer these questions asserting his privilege against self-incrimination. Both sides presented medical testimony which agreed that the claimant was capable of performing some level of employment and was not totally disabled.
In issuing his decision on the claim, the judge granted the claim petition finding that Claimant became partially disabled when he sustained a work-related injury to his lower back. The judge ordered the employer to pay claimant’s reasonable and necessary medical expenses relating to the work-related injury. However, the judge suspended the claimant’s wage loss benefits as of the date of injury based upon the finding that the claimant was an undocumented alien worker. The judge noted that he drew an adverse inference from the claimant’s refusal to answer the employer’s questions regarding his immigration status. The claimant appealed.
The Commonwealth Court framed the issue as follows: Since the judge found the claimant to be an undocumented alien was based solely upon the adverse inference that the judge drew from the claimant’s refusal to answer the employer’s questions regarding his immigration status, is this adverse inference, alone, sufficient to support the finding that the claimant’s wage loss benefit entitlement should be suspended based upon his undocumented alien status?
The Commonwealth Court noted that an adverse inference cannot serve as substantial evidence to support a finding of fact is because an adverse inference does not constitute evidence. The Court thus determined that while the judge did not necessarily err in drawing an adverse inference from the claimant’s refusal to testify regarding his immigration status, the judge did err in relying solely on that adverse inference in finding that the claimant was an undocumented alien.
Disclaimer: The above article is for instructive purposes only and each case is fact sensitive. Consultation with an attorney should be obtained instead of reliance upon the legal issues discussed in this column.

About the Author

Tom Cummings

E-mail: Tom Cummings
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Thomas P. Cummings has been a Partner with Dougherty, Leventhal & Price, LLP since 1996 and has been with the firm since 1991. He focuses his practice on workers' compensation and Social Security Disability cases.

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