Failure to testify doesn't establish undocumented worker status

In Pennsylvania, a party cannot satisfy its burden of proof in a civil proceeding solely through reliance on the adverse party's failure to testify.

Case name: Cruz v. Kennett Square Specialties, 26 PAWCLR 60 (Pa. W.C.A.B. 2011).

Ruling: The Pennsylvania Workers' Compensation Appeals Board reversed the workers' compensation judge's finding that the claimant was an undocumented worker and the employer's suspension of indemnity benefits.

What it means: In Pennsylvania, a party cannot satisfy its burden of proof in a civil proceeding solely through reliance on the adverse party's failure to testify.

Summary: The board ruled that the WCJ's finding that the claimant was an undocumented worker was not supported by substantial competent evidence. The claimant filed a claim petition alleging a work-related injury to his lower back. The WCJ found that the claimant sustained a work-related lumbar strain, midline disk herniation, and right radiculopathy, and that he was not capable of returning to his preinjury job but could return to modified duty. The WCJ also drew an adverse inference from the claimant's refusal, on the advice of counsel, to answer questions regarding his citizenship or immigration status. The WCJ determined that the claimant was not a U.S. citizen and was not authorized to work in the U.S., and therefore, the employer was entitled to a suspension of indemnity benefits as of the date of the injury. The board reversed the WCJ's finding that the claimant was an undocumented worker and the suspension of indemnity benefits. The adverse inference alone was not sufficient evidence upon which to base the finding that the claimant was an undocumented worker.

The employer did not present any other evidence supporting this contention, and therefore, it had to show job availability or earning capacity to obtain a suspension of benefits.

Read more at the WorkersComp Forum homepage.

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