Directly above photograph of an application for a visa.

The state Supreme Court has ruled that a worker from Ecuador, who invoked the Fifth Amendment when asked about his citizenship in a workers’ compensation case, did not prove by remaining silent that he was an undocumented worker.

In the case of Cruz v. Workers’ Compensation Appeal Board, the justices upheld a Commonwealth Court ruling that David Cruz’s employer could not halt his benefits because the company did not provide any evidence as to Cruz’s citizenship status. Before the case was appealed, a workers’ compensation judge sided with Cruz’s employer, suspending his benefits.

The employer, Kennett Square Specialties, claimed Cruz was not owed benefits because he was undocumented and therefore not legally able to work in the United States.

However, Justice Debra Todd wrote in the court’s majority opinion that the company bore the burden of proof as it relates to establishing whether Cruz was undocumented or not. Todd was joined in the majority by Justices Max Baer and Seamus P. McCaffery.

The only evidence as to Cruz’s employment eligibility, Todd said, was the invocation of Cruz’s right to remain silent, which the employer contended was proof enough. Ultimately, however, this argument fell short.

“We find that the Commonwealth Court properly determined … that the adverse inference drawn by the [workers' compensation judge] from [Cruz's] invocation of his Fifth Amendment right against self-incrimination did not, by itself, constitute substantial evidence to support the [judge's] finding that [Cruz] was not a United States citizen, and was not otherwise authorized to work in this country,” Todd said.

In a separate concurring opinion written by Justice Thomas G. Saylor and joined by Chief Justice Ronald D. Castille, Saylor said while he agreed with the Commonwealth Court’s ruling, he differed with its reasoning.

“I would not assign absolutely no evidentiary value to such a refusal,” Saylor said.

Additionally, Justice J. Michael Eakin wrote a concurring and dissenting opinion in which he agreed with the majority that the employer bore the burden of proof, but disagreed on the immigration aspect of the case. He was joined by Justice Correale F. Stevens.

“I respectfully dissent because I remain of the opinion workers’ compensation benefits ‘should yield to the injunction of congressional policy against employment of unauthorized aliens … [and] we should assume that the legislature did not intend to reward those who violate federal law in obtaining employment by allowing them to participate in a social insurance scheme for Pennsylvania workers,’” Eakin said, citing the court’s 2002 holding in Reinforced Earth v. Workers’ Compensation Appeal Board.

In July 2008, Cruz was loading barrels into a truck at a Chester County mushroom farm when he felt something snap in his lower back, Todd said. After seeing a doctor, Cruz learned he had a herniated disk.

The doctor concluded that Cruz could not resume his normal duties. According to Todd, Kennett Square Specialties told Cruz that it could not accommodate Cruz with a less strenuous job.

Cruz received workers’ compensation for a short time before his employer ceased making payments, Todd said. Cruz then filed a petition seeking compensation for lost wages and medical bills.

During a hearing before the workers’ compensation judge, the company asked Cruz during cross-examination if he was a naturalized U.S. citizen, whether he possessed a green card, or if he was an undocumented worker, according to Todd. Cruz invoked the right to remain silent for those questions.

Despite not having evidence to support Kennett Square Specialties’ claims that Cruz was not a citizen, the workers’ compensation judge suspended Cruz’s benefits, while ordering the employer to pay his medical expenses, according to Todd.

The Workers’ Compensation Appeal Board eventually reversed the decision to suspend benefits, a ruling that the Commonwealth Court affirmed.

In examining the workers’ compensation requirements, Todd noted that a claimant must prove only that he or she was injured on the job and that the injury caused a loss of earning power.

“Inasmuch as these are the only two things a claimant is required to demonstrate in order to successfully maintain a claim petition and obtain compensation for wage loss and medical treatment costs under the [Workers' Compensation Act], a claimant’s eligibility to lawfully work in the United States is not a relevant consideration in establishing either of these factors,” Todd said.

She added, “We therefore reject [the] employer’s assertion that a claimant, as part of his or her burden of proof in a claim petition, is required to establish his employment eligibility status under federal immigration law.”

Kennett Square Specialties’ attorney, Edward Carpenter Jr. of Carpenter McCadden & Lane in Media, Pa., did not return a call seeking comment.

Cruz was represented by Larry Pitt of Larry Pitt & Associates. Pitt said the court’s decision was in keeping with prior precedent, with the exception of the determination that the employer bears the burden of proof in establishing a worker’s citizenship status.

Additionally, Pitt said, “It was a very divided court … and this to me reflects the fact that the court was clearly wrestling with how to handle these types of cases involving undocumented workers.”

That struggle, Pitt said, is indicative of the mixed stance on immigration across the country.

“I think this dilemma [reflects] the dilemma in the country as a whole as to how to address undocumented workers,” he said.

P.J. D’Annunzio can be contacted at 215-557-2315 or Follow him on Twitter @PJDAnnunzioTLI.

(Copies of the 23-page opinion inCruz v. Workers’ Compensation Appeal Board, PICS No. 14-1168, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information. Account holders can use the online form to order.)