A recent decision by the Pennsylvania Supreme Court not only affirmed previous rulings allowing undocumented workers to obtain workers’ compensation benefits, but also held the employer – not the worker – bears the burden of proving a worker’s loss of earning power was a result of his non-citizenship status, as opposed to his injury.
Our Fort Lauderdale work injury lawyers recognize this ruling echoes other decision in Florida courts that protect injured, undocumented workers. Those decisions include Cenvill Development Corp. v. Candelo (Fla. 1st DCA, 1985) and, more recently, HDV Const. Systems, Inc. v. Aragon (Fla. 1st DCA, 2011).
In the Aragon case, a man working as a framer for a construction firm fell 30 feet on the job, sustaining numerous fractures to his foot and forearm. His fall required him to undergo extensive treatment, including the implantation of a spinal cord stimulator. Even so, his injuries were permanent, and included constant pain, nerve damage and discoloration. Doctors determined he should be restricted to sedentary work, which meant he was no longer eligible to work in construction, manufacturing or farming.
This essentially meant he couldn’t work, because he lived in the U.S. illegally, lacked a valid Visa, had no driver’s license, limited education, could not read, write or speak English and had no real skills that would assist him in obtaining sedentary work. He filed for permanent total disability.
The insurance company countered the only reason he couldn’t obtain sedentary work was because of his illegal status.
In concluding this was not an adequate defense, the court cited the Candelo decision. In that case, the judge concluded the employer knew or should have known of the worker’s illegal status in the U.S., and that by employing him, it assumed the risk of paying workers’ compensation benefit if he was hurt.
In both cases, the workers were awarded permanent total disability benefits.
In the more recent Pennsylvania case, Cruz v. Workers’ Compensation Appeal Board, the state supreme court didn’t say the workers’ immigration status was totally off-limits for the court’s consideration. However, what the employer could not do was rely on the worker’s use of the Fifth Amendment right against self-incrimination during trial.
In this case, the worker was a truck driver for a mushroom farm who injured his back while lifting barrels. The man sought immediate medical attention, and his doctor, after diagnosing him with a herniated disc, indicated he could do no work requiring him to lift more than 15 pounds. The employer responded there was no work available that fit those restrictions, and terminated the worker’s employment.
The company agreed to pay temporary disability benefits for just two months, after which point, the firm suddenly stopped paying and sent the worker a note, indicating a formal denial of his claim.
The injured worker responded with a lawsuit, alleging his injury rendered him totally disabled.
At a hearing on the matter, the employer’s attorney pressed the worker on his place of birth, amount of time in the U.S. and his citizenship status. In response to this questioning, the worker invoked his Fifth Amendment right to remain silent on the issue.
While the judge did find the injury was work-related and the employer was responsible to cover all necessary medical expenses, the judge also ruled the employee’s inability to find work had more to do with his citizenship status than his injury.
The state supreme court reversed, finding the burden of proof to show this was on the employer, and no evidence – aside from the worker’s invocation of the Fifth Amendment – supported this position. This alone did not meet the burden of proof. The case was remanded for consideration of appropriate benefits.
Undocumented workers who are injured on the job may feel they have few options. However, seeking a free and confidential legal consultation can help determine whether it is worthwhile to pursue workers’ compensation benefits in Florida.
Call Freeman Injury Law — 1-800-561-7777 for a free appointment to discuss your rights.
Cruz v. Workers’ Compensation Appeal Board, July 21, 2014, Pennsylvania Supreme Court
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Stafford v. Roadway – Allowing Minors to Drink Alcohol Never Pays, June 17, 2014, Fort Lauderdale Workers’ Compensation Lawyer Blog