The Pennsylvania Supreme Court recently addressed the burden of proof between an employer and a claimant regarding the claimant’s legal eligibility to work under Federal immigration law whenever the employer seeks to suspend workers’ compensation disability benefits in the case of Cruz v. W.C.A.B.(Kennett Square Specialties). The court held that the claimant’s invocation of the Fifth Amendment right against self incrimination by itself did not constitute substantial competent evidence of the claimant’s illegal status, and the employer bears the burden to present independent and probative evidence regarding the claimant’s citizenship status and eligibility for employment.

 The claimant, who was employed as a truck driver, sustained a herniated disc injury while loading a truck he was to drive. The employer issued a Notice of Temporary Compensation Payable acknowledging the injury, but subsequently filed a Notice Stopping Temporary Compensation and Denial. The claimant responded by filing a Claim Petition, which was fully litigated before the WCJ. On cross-examination, the claimant was asked whether he was an undocumented worker and other relevant questions regarding his immigration status. The claimant invoked his Fifth Amendment right against self incrimination. The court noted the employer did not provide any evidence of record regarding the claimant’s legal status.

 The WCJ suspended the claimant’s disability benefits and made an adverse inference regarding the claimant’s failure to answer questions regarding his legal status. The WCJ decision was overturned by the Board and the Board was affirmed by the Commonwealth Court. Both the Board and the Commonwealth Court held that an adverse inference alone cannot serve as substantial competent evidence because an adverse inference alone does not constitute evidence.

 Ultimately, the Supreme Court affirmed the Board and Commonwealth Court, holding that an adverse inference alone is not substantial competent evidence. The employer could meet its evidentiary burden through other means than that of the claimant’s invocation of his Fifth Amendment rights. The Supreme Court did not specify what, if any, independent evidence would be adequate to meet the employer’s burden of proof to suspend benefits due to the claimant’s illegal immigration status.

What It Means to You

 

The Supreme Court did not expressly overrule Reinforced Earth, which held the employer does not have the burden of establishing job availability when the claimant is an undocumented worker. The employer must present independent probative evidence of the claimant’s illegal immigration status in order to meet its burden for suspension where the claimant is an illegal worker.