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Pleading the Fifth on immigration status no bar to workers comp benefits in Pa.

Pleading the Fifth on immigration status no bar to workers comp benefits in Pa.

A Pennsylvania employer should not have stopped payment of workers compensation benefits to an employee who declined to testify about his immigration status during a hearing, the Pennsylvania Supreme Court has ruled.

David Cruz worked as a truck driver for Kennett Square Specialties, which operated a mushroom farm in Chester County, Pennsylvania, records show. He hurt his back in July 2008 while lifting 15- to 20-pound barrels into his truck.

A medical exam showed that Mr. Cruz suffered a herniated disk in his back, records show. His doctor restricted him to lift no more than 15 pounds at work and told Mr. Cruz he could not perform work activities that involved stretching, bending or reaching.

Kennett Square told Mr. Cruz that it did not have any positions that were compatible with his work restrictions, and Mr. Cruz did not report to work after August 2008, records show.

Kennett Square began paying temporary workers comp benefits to Mr. Cruz as of his last day of work but issued a formal denial of benefits a month later, according to court records. Soon after, Mr. Cruz filed a claim seeking workers compensation for lost wages and medical bills.

In a workers comp hearing in October 2008, Mr. Cruz testified that he came to the United States from Ecuador in 1998, records show. Attorneys for Kennett Square asked Mr. Cruz during the hearing if he was a naturalized U.S. citizen, if he was an undocumented worker or if he possessed a “green card.”

Mr. Cruz, on the advice of his attorney, invoked his Fifth Amendment right against self incrimination when asked about his immigration status during the hearing, records show. Mr. Cruz also invoked the Fifth Amendment when he was later asked if he improperly used his wife's Social Security number when receiving medical treatment for his back injury.

A Pennsylvania workers comp judge ruled that Mr. Cruz's back injury was work-related and ordered Kennett Square to pay Mr. Cruz's reasonable and necessary medical expenses, records show. However, the judge also suspended Mr. Cruz's disability compensation benefits, finding that Kennett Square met a burden of proof to show that Mr. Cruz was not authorized to work in the United States.

In an appeal by Mr. Cruz, the Pennsylvania Workers' Compensation Appeal Board found Mr. Cruz's refusal to testify about his immigration status did not constitute proof of whether he was working legally in the United States, records show. The board ordered Kennett Square to pay both medical and disability compensation benefits, and a Pennsylvania Commonwealth Court unanimously affirmed that decision in 2011. Kennett Square subsequently appealed.

In a 5-2 ruling Monday, the Pennsylvania Supreme Court upheld the lower court ruling. The high court found that Kennett Square held the burden of proof for showing that Mr. Cruz was working illegally in the United States, and therefore Mr. Cruz was not responsible for proving his immigration status in this case.

Mr. Cruz’s refusal to testify about his work status under the Fifth Amendment did not meet the burden of proof because Kennett Square produced no other evidence that Mr. Cruz was working illegally, the high court majority found.

“Merely because Claimant was born in a foreign county and arrived here over a decade ago does not ipso facto establish that he is not a U.S. citizen, or not otherwise eligible to work in this country,” the majority opinion reads.

“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.”

In a partial dissent, Justice J. Michael Eakin agreed that Mr. Cruz suffered a work-related injury but said that Pennsylvania lawmakers “did not intend to reward” undocumented workers “by allowing them to participate in a social insurance scheme for Pennsylvania workers.”

“I thus believe that if an employer puts a claimant’s immigration status at issue, the claimant must establish he or she is legally entitled to work in the United States as a prerequisite to obtaining benefits under the Workers’ Compensation Act,” his dissent reads.

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