PENNSYLVANIA RECORD

The Pennsylvania Supreme Court says that a mushroom farm worker's invocation of the

Fifth Amendment when asked about his citizenship status cannot be used as evidence to deny him workers' compensation, according to an opinion released this week.

The ruling upholds the findings from the state Workers' Compensation Appeals Board and the Commonwealth Court, which say that the burden of proof regarding an employee's legal status falls on the employer.

The majority opinion, written by Justice Debra McCloskey Todd, affirmed the legal principle that a party cannot meet the burden of proof by merely relying on the opposing party's refusal to testify.

In July 2008, David Cruz, a truck driver for Kennett Square Specialties, a mushroom farm in Chester County, Pa., was loading barrels into his truck when he heard a snap in his lower back. A visit to the doctor revealed he had a herniated disc, and Cruz was restricted by the physician to carrying no more than 15 pounds and performing work that required to stretching or bending.

Cruz's employer informed him that no such jobs existed at the farm, and paid Cruz temporary workers' compensation for one month, between August and September 2008. After receiving a notice that his workers' comp would no longer be covered by Kennett Square, Cruz filed a petition claiming the injury happened while he was on the job and rendered him totally disabled.

At a hearing before the Workers' Compensation judge, Cruz's cross-examination began with questions about his original country of birth, Ecuador, and when Cruz arrived in the United States, 10 years ago. When the attorney finally asked Cruz whether he was an undocumented worker and if he had a green card, Cruz invoked his Fifth Amendment right not to incriminate himself. The amendment was invoked again at a second hearing when Cruz was asked if he used his wife's social security card.

The judge ruled that Cruz proved that he suffered the injury at work and ordered Kennett Square to pay his medical bills. However, the judge also ruled in favor of Kennett Square regarding the immigration issue and suspended compensatory payments.

That suspension was overturned by the WCAB, which said since Kennett Square did not provide independent proof of Cruz's status.