Illegals Receiving Workers' Compensation — Is That Legal?

Our national political conversations are flooded with talk of immigration reform. The fact is that many undocumented aliens are working here with us every day. These people are no more immune to work injuries than citizens or legal resident aliens. What rights does an illegal worker have when he or she suffers a work injury in Pennsylvania?

The law in this area has been adapting and changing over time. In 2002, the Pennsylvania Supreme Court in Reinforced Earth Company v. Workers’ Compensation Appeal Board (Astudillo), 570 Pa. 464, 810 A.2d 99, held that a claimant’s status as an undocumented alien worker does not preclude him from receiving total disability benefits under the Workers’ Compensation Act

Normally, a workers’ compensation carrier or employer seeking to suspend a claimant’s wage loss benefits in Pennsylvania must show 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, or show job availability through a labor market survey. Most recently, our Commonwealth Court in Ortiz v. Workers’ Compensation Appeal Board (Rodriguez) issued another pronouncement on the benefits available to illegal aliens. In Ortiz, the Commonwealth Court found that to suspend the weekly wage benefits of an unauthorized alien, an employer need only demonstrate that a claimant’s medical condition has improved enough to work at some job, even one with restrictions. The employer need not show job availability, because the irrebuttable presumption is that the illegal alien cannot work anywhere (even if he finds another job and is actually working at lesser wages), and thus the wage loss is due to his status as an illegal rather than the effects of the work injury.

One might wonder why an illegal alien is entitled to any wage loss benefits at all.  Firstly, the Pennsylvania Workers’ Compensation Act itself does not distinguish between legal and illegal workers. Employees are defined as including “[a]ll natural persons who perform services for another for a valuable consideration, exclusive of persons whose employment is casual in character and not in the regular course of the business of the employer…” 77 P.S. § 22. All injured workers in PA, for instance, are entitled to reasonable and necessary medical treatment, which is causally related to their injuries. One reason why total disability wage loss benefits are available to injured illegal aliens is that disallowing any disability compensation to an unauthorized worker might cause employers to actively seek out and hire illegal workers so as not to have to pay them workers’ compensation benefits if they are injured.

Interestingly, the courts have sanctioned the suspension of partial disability benefits from illegal aliens even when they have in fact returned to the workforce and are earning less than their pre-injury wages due to the effects of the work injury. Where a documented worker would be entitled to a partial disability benefit in that circumstance, an undocumented worker is not.

Some readers will bristle at the idea of providing any kind of workers’ compensation benefits to illegal aliens. But remember that workers’ compensation laws provide an exclusive remedy to injured workers, and workers’ comp is a shield against personal injury lawsuits targeting the employer. Without workers’ compensation coverage, an undocumented worker might be able to sue the employer for negligence instead of being restricted to the remedies of the Workers’ Compensation Act.

Pennsylvania Workers’ Compensation is a specialized area of practice, and is filled with unexpected twists and turns. Employers are typically provided lawyers by their insurance companies who only practice workers’ compensation law. Injured workers, legal or illegal, should always consult experienced workers’ compensation claimant’s attorneys when they have had a work injury.