Cruz v. Workers Compensation Appeal Board

Justice EAKIN,

concurring and dissenting.

I agree claimant carried his burden of establishing he suffered an injury in the course of employment that resulted in a loss of earning power. See Majority Op., at 406-09. I respectfully dissent because I remain of the opinion workers’ compensation benefits “should yield to the injunction of [congressional policy against employment of unauthorized aliens ... [and] we should assume that the legislature did not intend to reward those who violate federal law in obtaining employment by allowing them to participate in a social insurance scheme for Pennsylvania workers.” Reinforced Earth Company v. Workers’ Compensation Appeal Board (Astudillo), 570 Pa. 464, 810 A.2d 99, 111-12 (Pa.2002) (Newman, J., dissenting, joined by Eakin, J.). I thus believe that if an employer puts a claimant’s immigration status at issue, the claimant must establish he or she is legally entitled to work in the United States as a prerequisite to obtaining benefits under the Workers’ Compensation Act.¹ Since the claimant here failed to do so by refusing to testify regarding his immigration status, I would reverse the order of the Commonwealth Court.

Justice STEVENS joins this concurring and dissenting opinion.

1 . I am not incognizant of the likelihood employer was aware of claimant's immigration status at the time claimant was hired and of . the concomitant policy in permitting employer to "have its cake and eat it too” by shielding it from liability under the Workers’ Compensation Act for being complicit in, if not an accomplice to, hiring unauthorized aliens contrary to federal immigration law. However, tougher employer sanctions for engaging in such behavior are to be found in the General Assembly, not this Court, and unauthorized aliens are not without recourse for injuries caused by their employer’s negligence, because ”[i]f an unauthorized alien is ineligible for benefits under the [Act], it follows that the employer should not enjoy the immunity from suit granted by 77 P.S. § 481 ... and [the employee] may sue the employer for injuries caused by the negligence of the employer.” Id., at 111 n. 4; see also 77 P.S. § 481(a) (emphasis added) (stating "liability of an employer under this act shall be exclusive and in place of any and all other liability to such employes”).