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Adverse Inference Insufficient to Prove Undocumented Alien Status

Adverse Inference Insufficient to Prove Undocumented Alien Status

Christian Petrucci regularly contributes legal articles to The Legal Intelligencer. Below is his latest article adverse inferences being insufficient to prove a undocumented alien’s status. Below is an excerpt from Christian’s article. You can read the rest at The Legal Intelligencer’s website.

Christian Petrucci, The Legal Intelligencer

Last month, the Pennsylvania Supreme Court issued its long-awaited decision in Cruz v. Workers’ Compensation Appeal Board (Kennett Square Specialties), No. 69 MAP 2012 (decided July 21, 2014). In it, the court affirmed the 2011 Commonwealth Court decision that held that it is the employer’s burden to prove whether a loss in earning power of an injured worker is due to his lack of U.S. citizenship or other legal work authorization, rather than the work-related injury, in order to obtain a suspension of his indemnity benefits. Additionally, the court upheld the lower court’s ruling that the claimant’s invocation of his Fifth Amendment right against self-incrimination when testifying in a workers’ compensation proceeding did not constitute substantial evidence of the claimant’s alleged lack of legal authorization to be employed in the United States. Specifically, the court agreed that the workers’ compensation judge erred in relying solely on the adverse inference taken in finding that the claimant was an undocumented alien and thus could not legally work in this country.

Given the significance of the decision, a review of the status of workers’ compensation law as it relates to an injured worker’s immigration status is warranted. That analysis begins with the seminal state Supreme Court case of Reinforced Earth v. WCAB (Astudillo), 570 Pa. 464, 810 A.2d 99 (2002), decided in 2002. Reinforced Earth reinforces the notion that an undocumented alien worker does not forfeit the right to receive disability benefits under the Workers’ Compensation Act simply due to his or her immigration status. To deny that right would offer an incentive to employers to hire undocumented aliens in an effort to avoid workers’ compensation liability. However, the case also held that where the employer can demonstrate that the claimant is capable of performing any work at all, the employer is entitled to a suspension of benefits without the need of showing job availability, as would be the case in any other return-to-work scenario short of full recovery. The court reasoned that since an undocumented alien cannot legally accept work in the United States, that individual’s loss of earning capacity becomes his immigration status and not his work-related injury the moment he is capable of any gainful employment at all. A vocational analysis would not be warranted since the injured worker would be precluded from taking any identified jobs in the first instance.

Before last month’s decision in Kennett Square Specialties, the most recent case regarding the effect a claimant’s immigration status has on the receipt of workers’ compensation benefits was last year’s Commonwealth Court decision in Ortiz v. WCAB (Raul Rodriguez d/b/a Rodriguez General Contractors), No. 446 C.D. 2012 (Filed Jan. 15, 2013). Ortiz took Reinforced Earth one step further, by holding that not only does an employer not need to show job availability to obtain a suspension of benefits, it does not even need to demonstrate a change in the claimant’s physical condition. Ortiz had the consequence of making only the most serious of work injuries sustained by undocumented aliens compensable in the long term. Whether the decision further incentivizes employers to hire undocumented alien workers remains to be seen.

Given the holdings in Reinforced Earth and Ortiz, the burden of demonstrating illegal immigration status is paramount to the parties’ respective rights. That makes understanding the Kennett Square Specialties decision and its factual background crucial to the handling of any case where the injured worker’s immigration status is in question.

The claimant in Kennett Square Specialties sustained an injury to his back while working as a truck driver with the employer. In the course of litigation for a claim petition for the injury, the claimant, David Cruz, testified on his own behalf. On cross-examination, the employer’s attorney asked Cruz whether he was a naturalized citizen. Cruz refused to answer and asserted his Fifth Amendment right against self-incrimination. The employer’s attorney then asked whether Cruz was an undocumented worker. Again, Cruz asserted the Fifth Amendment.
As in most cases involving a potential illegal immigration matter, the immigration status was of the utmost importance since both Cruz’s doctor and the employer’s physician were of the opinion that Cruz could return to work in a modified duty capacity, with restrictions. Therefore, if the employer could establish the inability of the injured worker to legally accept a job in the United States, it could achieve a suspension of benefits.

On April 1, 2010, the WCJ granted the claim petition, but made a finding that Cruz only became partially disabled at the time of his work injury. Consequently, the WCJ declined to award any indemnity benefits at all and placed Cruz into suspension status as of the injury date based on the notion that he was an undocumented alien worker. However, the WCJ made that finding solely on the weight of the adverse inference stemming from Cruz’s refusal to answer the employer’s questions regarding his immigration status. Moreover, the WCJ relied exclusively on that adverse inference in coming to the finding.

On appeal, the Workers’ Compensation Appeal Board affirmed the granting of the claim petition, but reversed the suspension of wage-loss benefits, indicating that an adverse inference, alone, was not substantial evidence and could not support a finding of fact that Cruz was undocumented. As alluded to above, after Commonwealth Court review, the unanimous court affirmed the board and held that while the WCJ did not err in drawing an adverse inference from Cruz’s refusal to testify regarding his immigration status, the WCJ did err in relying solely on that adverse inference in finding that Cruz was an undocumented alien.

Following the Commonwealth Court’s decision, the employer petitioned the Supreme Court for allowance of appeal, which was granted. The court framed the issues as follows:

“[1] Did the Commonwealth Court err in placing the burden of proof in a claim petition on the employer, when the claimant failed to establish his ongoing entitlement to benefits by providing information on his documented status to the employer and to the court?

[2] Did the Commonwealth Court err in failing to consider its own holding in Brehm v. WCAB (Hygienic Sanitation Co.), 782 A.2d 1077 (Pa.Cmwlth. 2001), which states that a claimant who refuses to provide either the court or his employer with information necessary to make a determination, may have his workers’ compensation benefits suspended until such information is provided?

[3] Did the Commonwealth Court err in concluding that [the] workers’ compensation judge’s decision was not supported by substantial competent evidence where the record, in its totality, together with an adverse inference, does support the contention that the claimant is an undocumented worker, thereby entitling the employer to a suspension of benefits?”

In framing the first two questions as it did, the Supreme Court raised the possibility that it could be the claimant’s burden to unilaterally provide the WCJ or his employer with documentation tending to prove his legal working status. The employer argued that demonstrating legal status was part and parcel with the unquestioned legal burden that it is “the burden of the claimant to prove all of the elements necessary to support an award of benefit.” The third question was essentially the same one presented to the board and the Commonwealth Court.
In dealing with the first issue, the court noted that the employer provided no authority in support of its position that part of an injured employee’s burden of proof of “disability” includes the requirement that he demonstrate “that he is a documented worker, legally entitled to work in this country.” Consequently, the court rejected the employer’s argument, finding that the WCJ was permitted to grant the claim petition and then consider the employer’s argument in terms of an implicit suspension petition, thus creating two discrete questions and keeping the burden of proving the suspension on the employer.

As to the second question, the court again rejected the employer’s argument and distinguished Brehm from the instant matter. Brehm dealt with an employee who refused to turn over his tax returns when the allegation of post-injury earnings came up. The Brehm court found that a claimant who refuses to provide the financial information necessary to make a proper determination as to whether the claimant is working may have indemnity benefits suspended. The Kennett Square Specialties court found that the employer in Brehm had met its burden of proof because it submitted substantial independent evidence of alternate employment. It was not relying exclusively on an adverse inference. Also, the employee, himself, through his own testimony corroborated the fact that he had received this extra, undisclosed income.

Finally, as to the third issue presented, the court agreed completely with the Commonwealth Court, finding that the reason an adverse inference cannot be considered substantial evidence to support a finding of fact is due to the simple fact that an adverse inference is no evidence at all. A party’s failure to testify can support an inference that whatever testimony he could have given would have been unfavorable to him. However, there has never been a basis in the law that a party can satisfy its burden of proof in a civil action based exclusively on an individual’s failure to testify. The court found that without more in the record, there is insufficient evidence to support the WCJ’s finding. The court summarized its position in stating: “Claimant’s invocation of his Fifth Amendment right against self-incrimination did not relieve employer of its burden to present independent and probative evidence regarding claimant’s citizenship status and his corresponding employment eligibility.”

Of course, the question remains as to whether an employer can even demonstrate a claimant’s immigration status without the claimant admitting to it. While the Supreme Court does not even endeavor to address this issue, the lower court did mention in a footnote the problem faced by employers. The Commonwealth Court appealed to the federal Immigration Reform and Control Act (IRCA), which requires employers, at the time of hire, to verify an employee’s identity and employment authorization status through an I-9 form. While it is not for the courts to do the job of defense counsel, it is clear that through diligence and effort, an employer can ultimately prove immigration status should an employee refuse to testify. Given that this information should already be in the employer’s possession through the I-9 form, one must question whether the employer even wants to know the answer.

Read more: http://www.thelegalintelligencer.com/id=1202666772201/Adverse-Inference-Insufficient-to-Prove-Undocumented-Alien-Status#ixzz3AOAG1MlR