The Pennsylvania Workers’ Compensation Act protects any individual injured at work, regardless of immigration status. Generally, an injured worker is entitled to wage loss and medical treatment for his or her work related injury. An unauthorized alien is always entitled to medical treatment for a work injury without any limitation. However, recovering wage loss beneﬁts is a little more complicated.
Under Pennsylvania law, an unauthorized alien is entitled to past lost wages for his or her work injury. However, an undocumented alien is not entitled to future lost wages if it is proven during trial that the injured worker is unauthorized or out of status.
This rule is based on Section 413 of the Workers’ Compensation Act, which states that an individuals’ wage loss beneﬁts may be suspended or stopped if it is shown that the loss of earning power can be attributed to something that is not work-related. Unauthorized aliens are not legally allowed to work in the United States, thus the courts have found that their wage loss can be attributed to their unauthorized status, instead of their work injuries.
This is a harsh rule. An individual who is unable to work because of a serious, possibly permanent, injury is not able to get any ongoing wage loss beneﬁts if it can be established that the alien is unauthorized. This is true even though common sense tells us the worker is out of work because of his or her injuries and not to any status related issues.
Fortunately, the law has evolved over the years to soften this harsh rule. A workers” compensation judge can only limit ongoing wage loss if the employer can prove during the trial that the individual is an unauthorized alien. If the employer is unable to prove that the individual is unauthorized, then the individual will be entitled to ongoing wage loss.
In July of 2014, the Supreme Court issued a decision in the case Cruz v. WCAB (Kennett Sguare Specialities! which further helped unauthorized injured workers. In that case, the attorney for the employer asked the claimant about his immigration status. The claimant plead the Fifth Amendment, which protects an individual’s right to not incriminate themself. The employer did not introduce any other evidence that the injured worker was an unauthorized alien.
On appeal, the employer argued that invoking the Fifth Amendment was circumstantial proof of claimant’s unauthorized status. More speciﬁcally, the employer argued that it was entitled to an adverse inference regarding claimant’s immigration status based on the claimant’s refusal to testify. An adverse inference allows a judge to assume that, by not testifying, the individual is attempting to hide something damaging, and assume that damaging thing to be true.
In Cw, The Supreme Court held that an adverse inference cannot be based on a claimant’s refusal to testify about his immigration status. The court speciﬁcally stated, “As Employer presented no other evidence of record regarding Claimant’s employment eligibility status, any inference drawn from Claimant’s assertion of his Fifth Amendment right in response to questions on this topic was too speculative, standing alone, to constitute substantial evidence to establish that Claimant’s loss of earning power was not related to his work-related injury and due, instead, to his status as an undocumented worker.”
As a result, the claimant in C_ruz was entitled to ongoing wage loss beneﬁts for his work injury. If the employer desires to suspend wage loss beneﬁts based on immigration status, the employer has the burden of proving by independent evidence that the individual was undocumented or unauthorized to work in the United States.
There are several important points here for our immigrant communities. First and foremost, do not give up on your rights simply because you are concerned about your immigration status. Seek out an experienced attorney who understands these issues and can help you pursue your rights. Finally, you must make sure your attorney understands your immigration status so that he can advise you when and how to plead the Fifth Amendment to protect your ability to receive ongoing wage loss.