The Commonwealth Court has recently added a new case to the common law, dealing with the rights of an undocumented worker who is injured on the job in Pennsylvania. As most immigration and workers’ compensation practitioners are aware, the seminal case dealing with the rights of undocumented aliens who are injured on the job is the 2002 Pennsylvania Supreme Court case of Reinforced Earth v. Workers’ Compensation Appeals Board (Astudillo), 570 Pa. 464, 810 A.2d 99 (2002).
In Reinforced Earth, the court held that a claimant’s status as an undocumented alien worker does not preclude him from bringing a workers’ compensation claim and otherwise receiving disability benefits under the Pennsylvania Workers’ Compensation Act. For the first time, however, the court allowed an employer to obtain a suspension of those benefits if it is able to show that the claimant is capable of performing any work at all, without the normal burden of demonstrating job availability under Kachinski v. WCAB (Vepco Construction ), 516 Pa. 240, 532 A.2d 374 (1987). While not wanting employers to be free from workers’ compensation liability merely through employing undocumented workers, the court also concluded that since an undocumented alien cannot legally accept work in this country, his loss of earning power was due to his immigration status and not his work-related injury.
In 2011, the Commonwealth Court issued Kennett Square Specialties and PMA Management v. WCAB (Cruz) 31 A.3d 325 (Pa. Cmwlth. Ct. 2011), which was the most significant decision affecting an undocumented alien’s right to receive workers’ compensation benefits since Reinforced Earth. In Cruz, the court addressed what constitutes substantial evidence of immigration status and which party has the burden of proof regarding to the worker’s right to accept employment in the United States. Specifically, the court dealt with an individual’s assertion of the Fifth Amendment of the U.S. Constitution and its effect on the burden of proof. Essentially, the court held that while a workers’ compensation judge can take an adverse inference from a claimant’s refusal to testify regarding his immigration status, it cannot satisfy the burden of proof by itself, as there was no other competent evidence of record on the issue.
Whereas Reinforced Earth was decidedly an employer-friendly decision, Cruz favored the injured worker. The Commonwealth Court has now doubled down on Reinforced Earth with the recent case of Ortiz v. WCAB (Rodriguez General Contractors), No. 446 C.D. 2012 (Cmwlth. Ct. January 15, 2013). Ortiz now supports the notion that not only does an employer not need to demonstrate job availability to obtain a suspension of benefits, it also need not show a change in the claimant’s physical condition.
The facts in Ortiz are not in dispute. On June 16, 2007, the claimant, Eleazar Ortiz, sustained a serious injury to his leg and ankle while in the course and scope of his employment with Rodriguez General Contractors. However, the employer did not have a workers’ compensation insurance coverage, which got the Uninsured Employers Guaranty Fund (UEGF) involved through a claim petition.
On December 1, 2008, long after Reinforced Earth was decided, the WCJ granted Ortiz’s claim petition and awarded total disability from the date of injury through November 2007, by which time Ortiz’s physician had released him for part-time work. In fact, Ortiz was actually working four to five hours per day at that point. Notwithstanding the holding in Reinforced Earth, the WCJ awarded Ortiz partial disability benefits after November 2007. However, Rodriguez General Contractors did not appeal the decision.
On September 28, 2009, Rodriguez General Contractors filed a petition to suspend Ortiz’s partial disability benefits, alleging that Ortiz was not authorized to work in the United States. Significantly, Ortiz admitted that he was not authorized to work in the United States, but made the argument that he was entitled to ongoing benefits due to the fact that his medical condition had not changed from the time of the claim petition, according to the opinion.
The only evidence presented by the employer was the WCJ’s prior claim petition decision. Rodriguez General Contractors presented no new medical evidence tending to show a change in Ortiz’s condition after November 2007. The WCJ found, based solely on the admission in Ortiz’s answer, that Ortiz was not authorized to work in the United States. However, the WCJ also concluded that since Ortiz’s medical condition had not changed since November 2007, Rodriguez General Contractors was not entitled to a suspension. The WCJ imposed the burden on the employer of proving a change in medical condition. Consequently, Rodriguez General Contractors’ suspension petition was denied.
On appeal, the WCAB reversed, finding that Rodriguez General Contractors did actually prove a change in Ortiz’s medical condition since he was working and, therefore, no longer totally disabled. Ortiz petitioned to the Commonwealth Court for review, arguing that his benefits could not be suspended solely on the basis that he is not authorized to work in the United States, but that medical evidence and proof of a change in condition must be present.
In its holding, the Commonwealth Court found that Ortiz’s loss of earning power was caused by his immigration status once his medical condition improved enough to allow him to work part-time. However, the court inexplicably determined that this actually happened in November 2007, a fact which was already litigated in the claim petition proceeding. The court indicated that Ortiz, "who is not authorized to work in the United States, has been cleared to work with restrictions and does work part-time at Rossi Farm." The focus, as in the prior cases, was that Ortiz’s loss of earning power was due to his status as an unauthorized alien, not his work injury. In troubling fashion, the court noted in a footnote that the result may have been different had Ortiz asserted res judicata, as opposed to the change in condition argument.
It seems as if the result in the Ortiz case was more important than the manner of reaching it. Therefore, claimants’ attorneys would do well not to leave anything to guess work. Unless an undocumented-alien worker is completely and totally disabled from any and all gainful employment, he or she will not be eligible for ongoing workers’ compensation benefits. Proper medical documentation is of the utmost importance. •
Christian Petrucci is a solo practitioner and past co-chairman of the Philadelphia Bar Association’s workers’ compensation section. He concentrates his practice in workers’ compensation litigation and Social Security disability.