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Christian Petrucci of the Law Offices of Christian Petrucci. Christian Petrucci of the Law Offices of Christian Petrucci.

Earlier this month, the Pennsylvania Commonwealth Court reported the decision of Bryn Mawr Landscaping v. Workers’ Compensation Appeal Board (Cruz-Tenorio), which brought the issue of injured, potentially undocumented workers back into focus. Given the current political climate, the topic takes on a certain relevance that warrants revisiting the issue.

As is well known, the seminal case dealing with the rights of undocumented workers who are injured on the job is the 2002 Pennsylvania Supreme Court case of Reinforced Earth v. Workers’ Compensation Appeal Board (Astudillo). In Reinforced Earth, the court held that a claimant’s status as an undocumented worker does not preclude him from bringing a workers’ compensation claim and otherwise receiving disability benefits under the Pennsylvania Workers’ Compensation Act. However, the court essentially created a right for an employer to obtain a suspension of those benefits if it is able to show that the claimant is capable of performing any type of work at all. Normally, an employer would have to demonstrate job availability under Kachinski v. Workers’ Compensation Appeal Board (Vepco Construction) to obtain a suspension of indemnity benefits. That requirement was removed vis-a-vis undocumented workers under Reinforced Earth based on the notion that an undocumented worker cannot legally accept work in this country. Consequently, the injured worker’s immigration status would become the actual cause of the loss in earning power, as opposed to the work-related injury. The only reason the court tempered its holding was that it did not want employers to be free from workers’ compensation liability merely through employing undocumented workers. Otherwise, the court may have denied compensation to an injured worker, entirely.

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