Taking the Fifth Not Fatal in PA Workers’ Comp Case

We watched with great interest as the Pennsylvania Supreme Court reviewed the case of Cruz v. Workers’ Compensation Appeal Board (Kennett Square Specialties). This case is very important to those who practice, or are involved, in the Pennsylvania workers’ comp system.

For those who do not recall, this case involves an injured worker who refused to answer questions regarding his United States’ citizenship status, invoking his Fifth Amendment right against self-incrimination. The Workers’ Compensation Judge (WCJ) granted the Claim Petition, but then suspended benefits, based solely on a negative inference, from the injured worker’s refusal to answer the questions. The Workers’ Compensation Appeal Board (WCAB) reversed the suspension, saying that the negative inference, by itself, was insufficient to support a suspension of benefits. Upon appeal, the Commonwealth Court of Pennsylvania agreed, and affirmed the decision rendered by the WCAB.

The Supreme Court of Pennsylvania has now rendered its decision, affirming the opinion of the Commonwealth Court. Rejecting the argument that part of an injured worker’s burden of proof is to show eligibility to work in the United States, the Court found that citizenship status is instead a defense offered by the workers’ comp insurance carrier. In a Claim Petition, according to the Court, the burden faced by the injured worker is to simply prove two things: “(1) he or she was injured while in the course of employment, and (2) the injury resulted in a loss of earning power.” As such, the insurance carrier is the party bearing the burden of proof on whether the injured worker can legally work in the United States.

To support this burden of proof, the workers’ compensation insurance carrier must have evidence to support the ineligibility of the injured worker to work in the United States. A negative inference, said the Court, is not “evidence” and cannot carry this burden by itself. Frankly, we are unclear how this is any hardship to an employer. Lest we not forget, Federal Law (I-9) requires that employers obtain eligibility documentation from an employee at the time the employee is hired. A more skeptical author may conclude the insurance industry simply failed to cover for the many employers who willfully violate Federal Law, knowingly hiring workers legally unable to work in the United States. This decision by the Supreme Court merely prevents that unscrupulous employer from directly benefiting from the violation of Federal Law.

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