Recently, Hazleton, Pennsylvania, was in the news for its efforts to crack down on undocumented, illegal aliens. We also are hearing the Presidential candidates speak about their views on how to handle these people. It might make one wonder how an undocumented, illegal worker is treated under the Pennsylvania Workers’ Compensation Act.
The short answer is that an undocumented, illegal worker is entitled to workers’ compensation benefits in PA. The Supreme Court of Pennsylvania decided The Reinforced Earth Company v. W.C.A.B. (Astudillo) in 2002, answering this question with certainty.
Since that time, however, the Courts in PA have not been so kind to undocumented workers. While access to medical treatment for the work injury has continued undisturbed, the illegal worker’s right to wage loss (also known as “indemnity”) benefits has been reduced. As long as the undocumented worker is totally disabled, he or she is entitled to both medical and indemnity benefits. On the other hand, once the illegal alien worker is capable of ANY type of employment, the workers’ compensation insurance carrier can file a petition before a Workers’ Compensation Judge to have the indemnity benefits stopped (again, the medical benefits for the work injury would still continue).
In a typical workers’ comp case in Pennsylvania, if the workers’ compensation insurance carrier wants to reduce or stop (“modify” or “suspend”) indemnity benefits, the workers’ compensation insurance carrier must prove there is work available within the physical restrictions of the injured worker. When the injured worker is an undocumented alien, however, the workers’ compensation insurance carrier does not have to show that any work is available. This was made clear by the Commonwealth Court of Pennsylvania in Morris Painting, Inc. v. WCAB (Piotrowski), decided in 2003.
Indeed, even an illegal alien who has returned to work, at a loss in earnings, is not entitled to any indemnity benefits. The Commonwealth Court of PA decided Jose Mora v. WCAB (DDP Contracting Co., Inc) in 2004. In that decision, the Court held that even actual earnings of an illegal alien cannot be the basis for partial disability benefits because the injured worker in that case is not legally able to work in the United States.
As with the likely result on the mounting illegal alien issue at the National level, a compromise has developed with regard to PA workers’ comp benefits available to an injured undocumented illegal worker.