Under the Pennsylvania Workers’ Compensation Act and applicable case law, a non-U.S. citizen who is not eligible to lawfully work in the United States (undocumented worker) is permitted to receive workers’ compensation benefits if they are injured at work. However, in order to continue to be entitled to wage loss benefits, the work injury must totally disable the employee from working. Once an undocumented worker is medically released to return to some type of work, wage loss benefits can be stopped without an Employer showing job availability.
The Pennsylvania Supreme Court recently ruled that when an injured worker invokes his Fifth Amendment right against self-incrimination when being questioned at a hearing regarding his citizenship status, the court cannot assume that the injured worker is not permitted to be employed in the United States. The courts have consistently held that a party cannot meet its burden of proof in a civil proceeding merely by relying on a party’s failure to testify. Such an “adverse inference” is not evidence. Without independent evidence (proof of citizenship or residence status or I-9) supporting that a claimant is an undocumented worker, an Employer is not relieved of its burden to show earning power or job availability to suspend worker’s compensation wage loss benefits.