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.
