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    Partner of the American Worker

    Eleazar Ortiz v. WCAB- Does An Employer In Pennsylvania Have To Show Job Availability To Suspend An Unauthorized Alien’s Temporary Total Disability Benefits Under The Pennsylvania Workers’ Compensation Act ?

    No! In Eleazar Ortiz v. WCAB, the Commonwealth Court of Pennsylvania held that Claimant’s status as an undocumented alien does not preclude the award of temporary total disability benefits under the Pennsylvania Workers’ Compensation Act. However, if an employer wants to suspend a claimant’s TTD, it does not have to show job availability under a case called Reinforced Earth. Once an undocumented worker, who is receiving TTD benefits, is released to any type of work, it is his or her immigration status which is causing the loss of earning power, not the work-related injury, and thus, a suspension of wage loss benefits is warranted.

    [Note– suspension deals with wage loss benefits only, not medical.  To end medical benefits, a termination must be granted by the Work Comp Judge.]

    For injured workers who are working in Pennsylvania lawfully, the employers have a heightened burden when attempting to suspend a claimant’s wage loss benefits. They must prove that an actual job offer was made within the claimant’s restrictions and that the injured worker failed to follow up in good faith, (see Kachinski 4 pronged analysis) or they must show that work is generally available under the Labor Market Survey principles in the Act and commensurate case law. There are some instances where suspensions are automatic such as when a claimant fails to return the LIBC forms within 30 days or a return to work at earnings equaling or exceeding the pre- injury average weekly wage.

    As an attorney for injured workers in Pennsylvania Work Comp cases, I disagree with this Decision. If you are going to allow unauthorized workers to receive TTD benefits as a public policy exception, you should not then change up the standard when it comes to proving a loss of earning power post-injury. That being said, the Decision could have been worse- at least TTD benefits have survived in these circumstances.

    For more information about How Pennsylvania Workers’ Comp Works, call or email Certified Work Comp Specialist Michael W. Cardamone  at (215) 206-9068 for a Free Consult 7 Days A Week

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