Posted On: February 1, 2013 by Glenn Neiman

Undocumented Worker Cut Off from PA Workers’ Comp Without Change in Condition

As we have previously noted, undocumented workers in Pennsylvania are eligible for workers’ compensation benefits, but such benefits can be stopped when the injured worker is no longer totally disabled.

What a workers’ comp insurance carrier must prove to stop benefits in this situation was examined recently in the matter of Ortiz v. Workers’ Compensation Appeal Board (Raul Rodriguez). Here, the injured worker fell from a ladder and fractured his leg and ankle. Since the employer had no workers’ comp insurance, the injured worker filed a Claim Petition against the Uninsured Employers’ Guaranty Fund (UEGF).

During the litigation before the Workers’ Compensation Judge (WCJ), the injured worker went back to work, albeit on a part-time basis. The WCJ granted the Claim Petition and awarded ongoing workers’ comp benefits, based on the injured worker’s earnings. UEGF did not appeal this decision.

Subsequently, the UEGF filed a Petition for Suspension, alleging that the injured worker was not legally able to work in this Country, and was capable of some employment, making him ineligible for continued PA workers’ compensation benefits. In his Answer, the injured worker admitted that he was not legally able to work in this Country, but argued that a change in condition must be shown before benefits could be modified or suspended.

The WCJ agreed with the injured worker and denied the Petition for Suspension. Specifically, the WCJ noted that without having shown a change in the medical condition of the injured worker, the legal status alone was not enough and the Petition must be denied.

Upon appeal, the Workers’ Compensation Appeal Board (WCAB) reversed, finding that the return to part-time work was the proof of a change in medical condition. Thus, the mere proof then that the injured worker was not legally able to work in the United States was enough to obtain the Suspension. This was affirmed by the Commonwealth Court of Pennsylvania.

Our problem with this decision is not so much the law, as the tortured way the Board, and the Court, achieved their desired result. The need to compromise, allowing benefits to undocumented workers only as long as they remain totally disabled is far from perfect, and a bit Draconian for our liking, but at least understandable. The result in THIS case is not.

The injured worker went back to this part-time work in the prior litigation. A WCJ specifically found that ongoing benefits should be paid with this return to work. The UEGF did not appeal, making that decision final. That issue had already been decided and could not be relitigated.

After all, when it came to the injured worker trying to come back and change something (in the Weney case in 2008), the Court held sternly that the injured worker was barred from doing so. Yet, here, the insurance carrier (or, more accurately, the UEGF) was free to have another bite at the apple. This is simply an untenable result to interpret the Pennsylvania Workers’ Compensation Act in this fashion. The PA Courts frequently talk about how the Act is a “humanitarian” Act, enacted for “remedial purposes” and that the benefit of the doubt should be in the favor of the injured worker. Results as in this case reveal these words to be mere lip service, totally devoid of meaning.