Cruz v. WCAB (Kennett Square and PMA Management Corporation), No. 41 MAL 2012


In Kennett Square Specialists v. WCAB (Cruz), 31 A.3d 325 (Pa. Cmwlth. 2011), the Commonwealth court reversed a suspension of benefits by reason of the claimant’s undocumented status. In Cruz, the WCJ had drawn andan adverse inference from the claimant’s refusal to testify, upon which he based his finding that the claimant was an undocumented alien worker. The Commonwealth Court found that while the WCJ did not err in drawing an adverse inference based on the claimant’s refusal to give testimony about his immigration status, an adverse inference alone is not sufficient to support a finding that the claimant was an undocumented alien. Without more in the record, the Commonwealth Court held that there was insufficient evidence to support the WCJ’s finding.


The Supreme Court has granted the request of the employer to Appeal the following issues:


(A)   Did the Commonwealth Court err in placing the burden of proof in a claim petition on the Employer, when the Claimant failed to establish his ongoing entitlement to benefits by providing information on his documented status to the Employer and to the court?


(B)   Did the Commonwealth Court err in failing to consider its own holding in Brehm v. WCAB (Hygienic Sanitation Co.), 782 A.2d 1077 (Pa. Cmwlth. 2001), which states that a claimant who refuses to provide either the court or his employer with information necessary to make a determination may have his workers’ compensation benefits suspended until such information is provided?


(C)   Did the Commonwealth Court err in concluding that [the] Workers’ Compensation Judge[’s] decision was not supported by substantial competent evidence where the record, in its totality, together with an adverse inference, does support the contention that the claimant is an undocumented worker, thereby entitling the Employer to a suspension of benefits?

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