Workers who do not possess proper documents of citizenship or the right to work in the United States are referred to as undocumented workers (or ‘illegal aliens’). These workers still have a right to workers compensation benefits if they get hurt at work. Reinforced Earth v. WCAB, (Astudillo), 810 A.2d 99 (Pa. 2002).
Generally, once an injured worker has improved to the point that they can work at some level, the employer must prove there is work available to them. However, injured workers without proper documents cannot ‘legally’ be hired, so the court has determined that it is not necessary for the employer to prove that there is work within their restrictions ‘available’ to them. Once the employer proves that such workers have improved to the point that they can work (in any capacity), their right to wage loss benefits will be ‘Suspended’. They may still be entitled to payment for medical treatment.
It is the employer’s burden to prove that an employee is an undocumented worker. The worker may assert their right (under the 5th Amendment of the United States Constitution) to refuse to testify that they are in the country ‘illegally’. The employer must produce some actual evidence to prove the worker does not have the proper documents to be employed in this country. Kennett Square Specialties and PMA Mgmt. v. WCAB (Cruz), 31 A.3d 325 (Pa Cmwlth. 2011); Ortiz v. WCAB (Rodriguez General Contractors), 60 A.3d 209 (Pa Cmwlth. 2013) the
Therefore, in order to Suspend the worker’s benefits, the employer must present evidence to prove two facts:
- That the injured worker is able to work in “some” capacity and
- That the worker does not possess the necessary documents to be employed
Schmidt, Kirifides & Rassias Can Help You
If your claim has been denied or your right to ongoing benefits has been challenged, you NEED a Certified Workers’ Compensation Specialist Lawyer to help you. The laws and procedure involved with work injury claims is so complex, the Supreme Court of Pennsylvania and PA Bar Association have authorized a ‘Specialist Certification” for those few lawyers who have dedicated their practice to this field of law, have the required years of experience, passed the written testing requirements AND maintain Continuing Legal Education specific to workers compensation to obtain the Certification. EVERY work injury lawyer at SKR is a Certified Specialist, and has argued cases to the highest appellate courts in Pennsylvania on behalf of our clients. We do not merely ‘dabble’ in workers compensation – it is what we do. It is ALL we do!