By: Lisa A. Miller, Esquire
The Commonwealth Court affirmed the decision of the Appeal Board suspending Claimant’s disability benefits. The Board held that it was Claimant’s status as an unauthorized alien, not his injury that caused his loss of earning power.
On June 16, 2007, Claimant suffered a work injury when he fell from a ladder while working for Rodriguez General Contractors (Defendant). Clamant suffered a serious fracture to his leg and ankle. Because Defendant did not have a Workers’ Compensation Insurance Policy in place, Claimant presented his Claim Petition to the Pennsylvania Uninsured Employer’s Guaranty Fund (Fund). The Fund denied liability.
The WCJ conducted a hearing and awarded Claimant total disability from date of injury through November 2007. By that time, Claimant’s physician had released him to part time work, and he was working four (4) to five (5) hours per day. Accordingly, the WCJ awarded Claimant partial disability benefits after November 2007. Claimant presented no evidence that he was authorized to work in the United States, and the Employer did not appeal.
On September 28, 2009, Employer filed a Suspension Petition alleging that Claimant was not authorized to work in the United States, and that Claimant had returned to work. In his Answer, Claimant admitted that he was not authorized to work in the United States, but he contended that he was entitled to benefits because his medical condition had not improved. The matter was assigned to the same WCJ who decided the Claim Petition.
The Claimant testified that since November 2007 he has been working for Rossi Farms trimming blueberry bushes and grapevines. He stated that he worked between eighteen (18) and twenty (20) hours per week with his doctor’s permission. Employer’s only evidence was the Judge’s prior Decision. Employer presented no new medical evidence to show a change in Claimant’s condition after November 2007.
The WCJ found on the basis of Claimant’s admission that Claimant was not authorized to work in the United States. The WCJ also found that Claimant’s medical condition had not changed since November 2007, concluding that Employer was required to prove a change in Claimant’s medical condition, and had not done so. The WCJ denied the suspension petition, Employer appealed, and the Board reversed.
The Board held that the Claimant was not entitled to disability benefits after November 2007. The Board reasoned that Employer had demonstrated a change in Claimant’s medical condition by virtue of his work for Rossi Farms, which established that Claimant was no longer totally disabled. Once he was able to work, physically, he was no longer eligible for disability benefits. At that point, it was Claimant’s immigration status, not his residual injury that was responsible for his loss of earning power. In reaching its conclusion, the Board relied on Reinforced Earth Company v. WCAB (Aestudillo), 570 Pa. 464, 810 A.2d 99 (2002).
Claimant contends that his benefits cannot be suspended solely on the basis that he is not authorized to work in the United States. He contends that there must be proof of a change in condition.
A Claimant’s status as an undocumented alien worker does not preclude him from receiving temporary total disability benefits under the Act.
In a suspension proceeding, the Employer must demonstrate (1) evidence of a change in medical condition and (2) evidence that there is an available job the Claimant is capable of performing that would pay wages equal to or greater than his pre-injury wage (Kachinski).
However, an Employer seeking to suspend the disability benefits of a Claimant who is an unauthorized alien is not required to show job availability under Reinforced Earth. In that situation, the Employer need only demonstrate that Claimant is an unauthorized alien and that Claimant is no longer totally disabled.
In this case, Employer proved that Claimant’s loss of earning power was caused by his immigration status, once his medical condition improved enough to allow him to work part time, which happened in November 2007. To suspend weekly wage benefits of an unauthorized alien, an Employer need only demonstrate that Claimant’s medical condition had improved enough to work at some job, even one with restrictions. Here, Claimant who is not authorized to work in the United States had been cleared to work with restrictions, and did work part time at Rossi Farms. Claimant’s loss of earning power is now due to his status as an unauthorized alien, not his work injury.
