Monday, January 28, 2013

Undocumented Alien Worker - Suspension

The Worker Compensation Benefit entitlement of an undocumented alien worker was addressed by the Pa Supreme Court in Reinforced Earth Company v. WCAB (Astudillo) 810 A.2d 99 (Pa. 2002).
The Opinion announcing the Judgment of the Court (3 Justices) held that an undocumented alien worker is not barred from the Work Comp Act benefits for reasons of public policy. The Court declined to create a "public policy exception" from the Act's coverage.

However, in regards to the Suspension request, the Court stated the employer did not need to satisfy the Kachinski job availability requirement.  Claimant, an unauthorized alien cannot apply for or accept lawful employment. There would be no point in requiring employer to show jobs were referred to claimant or jobs were available to claimant, in order to prove entitlement to a suspension of benefits. Claimant's immigration status, not his work injury would be the cause of his loss of earnings.

Eleazar Ortiz v. WCAB (Raul Rodriguez d/b/a Rodriguez General Contractors)
 decided by the Commonwealth Court of Pennsylvania on January 15, 2013, at No. 446 C.D. 2012
opinion authored by Judge Leavitt.

Procedural & Factual History
June 2007 leg and ankle injury. Employer did not have WC insurance.
Employee filed an Uninsured Employers Guaranty Fund claim petition.
December 2008 WCJ granted claim.
TTD, then PPD benefits based upon earnings since November 2007 return to part-time work. Employer did not appeal.

September 2009 Employer petition for Suspension.
Asserted Employee was not authorized to work in USA.
Employee admitted not authorized to work.
Employer did not offer new medical evidence to show a change in physical condition since November 2007 return to work date.
WCJ denied Suspension.
Held Employer was required to show a change in physical condition.
WCAB Reverse. Grant Suspension as of November 2007 partial disability status.
Commonwealth Court affirm Suspension.

Commonwealth Court reviewed the Reinforced Earth decision and it's decision at Mora v. WCAB (DDP Contracting Co. Inc.) which followed in 2004.

Held: (1)   the undocumented alien worker is eligible for total disability benefits, but is not eligible for
                  partial disability benefits. 

          (2)   An Employer seeking to suspend disability benefits is not required to show job availability.

          (3)   The Employer need only demonstrate the claimant is an unauthorized alien and is no longer
                  totally disabled.

Claimant argued that employer must prove a change in his physical condition. He argued that there was no change in his condition since his return to part-time work in November 2007. At that time, the WCJ found he was entitled to PPD benefits, a finding the employer did not appeal from the December 2008 WCJ decision.
BUT claimant did not argue that the Suspension petition was barred by legal doctrine of res judicata, (ie., it was previously decided by the WCJ in the unappealled December 2007 order).
As this legal argument was not raised on appeal, it is waived.

Practice Pointers:
1. In the initial investigation, ask the Employee and Employer the work status of the employee.
    In many cases it may seem superfluous, but consider asking just once.

2. When dealing with a known undocumented worker, schedule a medical examination ASAP or ask
    the treating doctor for a statement regarding the claimant's work capability.

3. Remember the Kachinski 4 prong analysis of job availability evidence does not apply in regards to
    modification/suspension of: 

   (a) incarcerated employee (Banic)
   (b) voluntary retired employee (Henderson)
   (c) disabled employee from a non-work related medical condition (Schneider).

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