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The Pennsylvania Supreme Court has declined to determine whether public policy precludes unauthorized aliens from receiving benefits under the state Workers’ Compensation Act. Nevertheless, a plurality of the court announced Thursday that it would affirm the lower court’s decision to uphold benefits awarded to an unauthorized alien. The plurality reasoned that because the employer in Reinforced Earth Co. v. Workers’ Compensation Appeal Board (Astudillo) did not show that the claimant failed to meet a section of the act and further did not argue that benefits would violate the legislative intent of the act, there was no basis for denying benefits. And though the Reinforced Earth Co. requested a suspension of benefits because the claimant’s inability to work was no longer due to his injuries, the plurality found itself unable to reach a decision on the matter due to an insufficient record. But the lead opinion did state that when an employer asks to suspend workers’ compensation benefits that have been granted to an unauthorized alien, a showing of job availability by the employer would not be required. Writing for the plurality, Justice Ralph J. Cappy indicated that the four-prong analysis articulated in Kachinski v. Workmen’s Compensation Appeal Board (Vepco Construction Co.) need not be rigidly applied to situations in which an employer wants to suspend or terminate a claimant’s benefits because the claimant’s loss of earning power is no longer caused by a work-related injury. The case drew an equal number of concurring and dissenting justices. Joined by Justice Thomas G. Saylor, Justice Russell M. Nigro said he agreed with the outcome of the case. However, the justice said he wrote separately because he believed the court should have addressed public policy in reaching its decision. In an interesting twist, dissenting Justices Sandra Schultz Newman and J. Michael Eakin agreed that public policy could have been addressed. But unlike their concurring counterparts, the two justices concluded that benefits were not proper. “The preferable course,” Newman wrote, “is to announce, as a matter of public policy consistent with federal immigration law, that unauthorized aliens are not eligible for workers’ compensation benefits. One who obtains employment in a manner contrary to federal law should not benefit from that illegal employment relationship.” Claimant Juan Carlos S. Astudillo immigrated to the United States from Mexico. He arrived in California in 1988 and then moved to Pennsylvania two years later. According to the plurality’s opinion, the U.S. Immigration and Naturalization Service has no record of him, and the documents Astudillo obtained and presented to his employer were invalid. While employed by Reinforced Earth, Astudillo cut and welded iron and repaired motors. In addition, he had to climb scaffolding and ladders and lift heavy steel beams. In May 1994, the claimant was struck in the head, neck and back by a steel beam, subsequently losing consciousness. Astudillo’s treating physician said he sustained a concussion, mild head injury and acute cervical and lumbosacral strain and sprain. Ultimately, the doctor concluded that the claimant could not perform his pre-injury duties, and Astudillo never returned to work for Reinforced Earth. The workers’ compensation judge determined that Astudillo’s illegal status did not bar relief under the act and found that the claimant established all the elements of compensability by substantial and competent evidence. The judge also concluded that under the circumstances, Reinforced Earth presented a reasonable basis for contest. The employer appealed to the Workers’ Compensation Appeal Board, which affirmed the WCJ. According to Cappy, the WCAB opined that any determination that immigration status alone would preclude compensation benefits would violate the humanitarian purposes of the act. The case moved up to the Commonwealth Court where, according to the state high court, Reinforced Earth argued that the WCAB’s holding was inconsistent with a Commonwealth Court decision — Graves v. Workmen’s Compensation Appeal Board (Newman) — refusing compensation benefits to an escaped prisoner. The employer claimed that the public policy exception announced in that case should be applied to unauthorized aliens. In Graves, the court held that to grant benefits to an escaped prisoner would be to reward him for his escape, an absurd and unreasonable result. Newman, a judge on the Commonwealth Court at the time, wrote the opinion, expressly limiting the court’s holding to the proposition that an escape from an official detention renders a claimant ineligible for benefits under the act. At that time, the court did not hold that any other violation of law committed prior to employment would lead to a similar result. “The [Commonwealth Court] then declined to extend the holding in Graves to unauthorized aliens,” Cappy wrote, “explaining that ‘we specifically limited the Graves holding to escaped convicted criminals only, not illegal aliens who upon detection would normally be deported from the United States.’” The high court said that according to the court below, public policy would not be served by denying workers’ compensation benefits to unauthorized aliens because “‘all that would do is reward an employer who failed to properly ascertain an employee’s immigration status at the time of hire … and potentially subvert any public policy against illegal immigration because employers may actively seek out illegal aliens rather than citizens or legal residents because they will not be forced to insure against or absorb the costs of work-related injuries.’” Apparently the Commonwealth Court also included a footnote stating that Reinforced Earth did not produce evidence of its investigation into Astudillo’s immigration status at the time he was hired. Reinforced Earth also argued before the Commonwealth Court that Astudillo’s benefits should have been suspended since he could not work due to his immigration status. The court said that while the employer was not required to produce proof of actual job referrals to establish claimant’s earning power, the company would have to show that Astudillo could perform other work. As the Commonwealth Court found the employer had not presented evidence regarding the type of work claimant could perform that did not involve climbing or heavy lifting, suspension of benefits was denied. Thus the case reached the state high court, with Reinforced Earth arguing on appeal that the court below should have applied the Graves public policy exception to unauthorized aliens. Cappy began the plurality’s analysis by stating that while courts have independent authority to discern public policy, that authority exists only where legislation does not. “As we have observed,” the opinion states, “the [Workers' Compensation] Act is the Legislature’s definitive pronouncement of the law governing remedies for work-related injuries.” To establish a policy disallowing workers’ compensation benefits for unauthorized aliens “would be an exercise in judicial legislation, which we will not undertake,” the court ruled. After concluding that Astudillo was entitled to the benefits granted, the court turned to his employer’s request for suspension of the benefits under § 413 of the act. According to the opinion, the employer asserted that because Astudillo’s disability was caused by his inability to work lawfully, it was entitled to a suspension without having to meet the evidentiary test specified in Kachinski. The Kachinski test sets forth the process for an injured employee’s return to work: • The employer who seeks to modify benefits must first produce medical evidence of a change in condition. • The employer must then produce referrals of available jobs fitting the claimant’s physical and occupational capabilities. • Once those first requirements are met, the claimant must then show that he or she has made a good faith effort to follow through on the referrals. • If, despite claimant’s good faith effort, the referral does not lead to employment, benefits must continue. But, Cappy wrote, both the facts and the basis upon which modification is sought determine which prong or prongs of Kachinski may be disregarded. The plurality determined that Reinforced Earth was not required to satisfy the job availability prong to show entitlement to suspension of benefits. Accordingly, the court found the Commonwealth Court erred by imposing that requirement. However, the plurality said it was constrained to remand on the issue because the WCJ did not address it, leaving an inadequate record. In her dissent, Newman stated that the court’s self-imposed caution in Reinforced Earth is inappropriate since the employer based its argument on congressional mandate against employment of unauthorized aliens under the Immigration Reform and Control Act. “Our present question,” Newman said, ” … is whether the policy of the Pennsylvania General Assembly to afford workers’ compensation benefits to employees injured in work-related accidents should yield to the injunction of Congressional policy against employment of unauthorized aliens. I believe that it should.” John J. Stanzione of Wusinich Brogan & Stanzione represented Astudillo. Joseph F. Frattone and Stephen J. Harlen of Swartz Campbell & Detweiler served as counsel for Reinforced Earth. James A. Holzman and Amber M. Kenger were listed as counsel for the Workers’ Compensation Appeal Board.

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