Cruz v. Workers Comp. Appeal Bd.

• Decision Date: 21 July 2014
• Docket Number: No. 69 MAP 2012,69 MAP 2012
• Parties: David CRUZ v. WORKERS COMPENSATION APPEAL BOARD (KENNETT SQUARE SPECIALTIES and PMA Management Corporation). Appeal of Kennett Square Specialties and PMA Management Corporation.
• Court: Pennsylvania Supreme Court

627 Pa. 28

99 A.3d 397

David CRUZ

v. WORKERS COMPENSATION APPEAL BOARD (KENNETT SQUARE SPECIALTIES and PMA Management Corporation).Appeal of Kennett Square Specialties and PMA Management Corporation.

No. 69 MAP 2012

Supreme Court of Pennsylvania.

Argued Nov. 28, 2012.

Resubmitted June 23, 2014.

Decided July 21, 2014.

Edward Ross Carpenter, Jr., Erin A. Padovani, Carpenter, McCadden & Lane, L.L.P., Media, for Appellant.

Amber Marie Kenger, Kathryn McDermott Speaks, Workers Compensation Appeal Board, Harrisburg, for Workers' Compensation Appeal Board, Appellee.

Larry Pitt, George Dallis Walker, Jr., Larry Pitt & Associates, P.C., Philadelphia, for David Cruz, Appellee.

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ.

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

Justice TODD.

In this appeal, we are asked to address the proper allocation of the burden of proof as between an employer and a workers' compensation claimant regarding the injured employee's legal eligibility under federal immigration law to obtain suitable employment whenever the employer seeks to suspend workers' compensation disability benefits. For the reasons that follow, we hold that the Commonwealth Court correctly determined that Appellant, Kennett Square Specialties (“Employer”), bore the burden to prove that the loss of earning power of its injured employee, David Cruz (“Claimant”) was due to his lack of United States citizenship or other legal work authorization in order to obtain a suspension of his workers' compensation disability benefits. We further hold that Claimant's invocation of his Fifth Amendment¹ right against self-incrimination when questioned at the hearing before the Workers' Compensation Judge (“WCJ”) did not constitute substantial evidence of Claimant's alleged lack of legal authorization to be employed in the United States, and thus could not, standing alone, furnish sufficient evidence for the WCJ to suspend Claimant's benefits. We therefore affirm the decision of the Commonwealth Court.

I.Background

In July 2008, Claimant was employed as a truck driver for Employer, Kennett Square Specialties, which owned and operated a mushroom farm in Chester County, Pennsylvania. On July 19, 2008, as part of his work duties, Claimant was loading 15–20 pound barrels onto his truck when he felt something snap in his lower back. He promptly informed Employer of his injury and sought medical treatment from a physician designated by Employer. Medical examination revealed that Claimant had a herniated disk. As a result of this injury, Claimant's treating physician did not release him to resume his normal work duties, but, instead, ordered that he be restricted to lifting no more than 15 pounds, and also ordered that he undertake no work activities involving stretching, bending, or reaching. Employer, upon receipt of this information, informed Claimant that it had no position available which was compatible with these restrictions. Thereafter, beginning on August 8, 2008, Claimant no longer reported for work.

Employer issued a notice of temporary compensation payable² on August 8, 2008, and paid Claimant temporary workers' compensation benefits from that date until September 8, 2008, when it abruptly ceased payment and issued a formal denial of compensation notice. Claimant filed a claim petition on September 9, 2008, alleging, inter alia: his lower back injury was work-related, the back injury rendered him totally disabled and unable to perform his pre-injury job from the date of the injury, and his disability³ was ongoing. Claim Petition, 9/9/08. Claimant sought compensation for lost wages and for medical bills. Employer filed an answer to the petition on September 26, 2008 denying all of Claimant's allegations, and, additionally, reserved the right to raise “any and all defenses available to it under the provisions of the Workers' Compensation Act⁴ [“(WCA”) ],” or “any additional defenses which become apparent during the pendency of this litigation.” Appellant's Answer, 9/26/08, at 2.

A hearing was held before the WCJ on October 22, 2008. At the hearing, Claimant, under direct examination from his counsel, testified regarding his job duties, salary and working hours, circumstances of his injury, and his medical prognosis indicating he was incapable of returning to the job he had prior to his injury. N.T. WCJ Hearing, 10/22/08, at 1–23. Employer began its cross-examination of Claimant by asking him where he was born, and Claimant replied that he was born in Ecuador. Id. at 23. Employer next asked when Claimant came to the United States, and he answered that he had arrived 10 years previously. Id. At this point, Claimant's attorney objected to any further questioning regarding Claimant's citizenship or his ability to work, but the WCJ overruled the objection, opining “[t]he case law makes citizenship relevant.” Id. at 24.

Employer then continued its cross-examination and asked Claimant if he was a naturalized citizen of the United States, whether he was an undocumented worker, and whether he possessed a “green card”. Id. at 26. In response to each of these questions, Claimant, through counsel, invoked his Fifth Amendment right against self-incrimination.⁵ Id.

Subsequent to the hearing, the record was supplemented with depositions of Claimant's treating chiropractor and a physician selected by Employer to perform an independent medical examination. Prior to the closing of the record, Employer sought to take the deposition of Claimant on the basis of Employer's allegation that Claimant had improperly used his wife's social security number. Claimant's attorney canceled the scheduled deposition, and, although rescheduled, Employer's counsel did not timely appear at the second deposition. N.T. WCJ Hearing, 11/16/09, at 4. At the final hearing before the WCJ on November 16, 2009, Employer sought to question Claimant regarding his alleged use of the social security number, at which time Claimant, through counsel, renewed the assertion of his Fifth Amendment right, and no testimony was taken. Ultimately, Employer did not provide any evidence of record regarding Claimant's legal authorization to work in the United States.

Thereafter, the WCJ issued a decision in which he found that Claimant's injury was work related, and, also, that the extent of the injury rendered him partially disabled. Consequently, the WCJ ordered Employer to pay all of Claimant's reasonable and necessary medical expenses. However, the WCJ suspended Claimant's benefits from the date of Claimant's injury based on his finding that “[e]mployer has met its burden to establish that Claimant was not a United States citizen, and that he was not authorized to work in this country.” WCJ Decision, 7/19/08, at 4 (citing Reinforced Earth v. W.C.A.B. (Astudillo), 570 Pa. 464, 810 A.2d 99 (2002) ).⁶

Consequently the WCJ suspended claimant's disability compensation payments effective July 18, 2009, but he continued Claimant's medical benefits.⁷

Claimant appealed this decision to the Workers' Compensation Appeal Board (“WCAB”), which affirmed the WCJ in part, and reversed in part. With regard to the question of Claimant's citizenship status, the WCAB recited the general legal principle that a party cannot carry its burden of proof in a civil proceeding merely by relying on an adverse party's failure to testify. Thus, the WCAB found that the Employer did not meet its burden of proof in the instant matter regarding Claimant's citizenship status solely by relying on an adverse inference created by Claimant's failure to answer Employer's questions on the subject of his citizenship, as such an adverse inference, alone, was not sufficient evidence. The WCAB ruled that, since Employer provided no independent evidence to support its contention that Claimant was an undocumented worker, Employer was not relieved of its burden to show Claimant's earning power or job availability. Accordingly, the WCAB reversed the WCJ's order to the extent that it suspended Claimant's disability benefits.

The Commonwealth Court affirmed the WCAB's ruling in a unanimous published opinion. Kennett Square Specialties v. W.C.A.B. (Cruz), 31 A.3d 325 (Pa.Cmwlth.2011). The court first reasoned that, under Reinforced Earth, an employee is not prohibited from receiving disability benefits under the WCA simply by virtue of his status as an undocumented worker; however, the court interpreted this decision as allowing suspension of such benefits whenever the employer demonstrates that the employee is capable of performing a modified duty job, without requiring an employer to show the availability of such work. Id. at 327.

Regarding the manner in which the WCJ handled the case, procedurally, the court found that the WCJ properly treated the Employer's response to Claimant's initial claim petition as a request for suspension of Claimant's benefits. Based upon that finding, the court further reasoned that, because Employer was the party seeking suspension of benefits, it had the burden of establishing the Claimant's eligibility status for employment, rather than the Claimant being required to establish, in support of his claim petition, that he possessed the necessary official documentation of his employment eligibility.

However, the court characterized the ultimate issue as “not whether the WCJ erred in suspending benefits based on the finding that Claimant is an undocumented alien, but rather, whether there is substantial evidence in the record to support the WCJ's finding that Claimant is an undocumented alien in the first place.” Id. at 328. The court determined that the WCJ's finding in this regard was “based solely upon the adverse inference that the WCJ drew from Claimant's refusal to answer Employer's questions regarding his immigration status.” Id. Citing our Court's decision in Harmon v. Mifflin County Sch. Dist., 552 Pa. 92, 713 A.2d 620 (1998), discussed at greater length infra, in which we held that an adverse inference from...