DDP Contracting, Inc. & Penn National Ins. v. WCAB (Mora) presents the issue unresolved by The Reinforced Earth Co. v. WCAB (Astudillo), i.e. what is the Employer's burden to suspend or modify benefits awarded to an illegal alien?
In Reinforced Earth, the case was remanded to the WCJ to make a record on the Employer's request that benefits be suspended. The Court held a suspension will not be granted on the sole basis that an illegal alien can't be employed, but this does relieve the Employer from showing job availability. The Court discussed earning power as a basis for change of status, but in a footnote stated it did not endorse the Commonwealth Court's suggestion that an Act 57 analysis be undertaken. One possible outcome could be that a credible medical opinion that the Claimant could return to work would suspend benefits.
However, in the present case this outcome is not easy to arrive at. The WCJ has credited a medical opinion that the Claimant is unable to return to work as a roofer. Another fact is that the Claimant found new work at a reduced wage. Since the Supreme Court's decision in Reinforced Earth post-dated the Commonwealth Court's decision in DDP Contracting the Supreme Court exercised its perogative to see what the Commonwealth Court can make of the facts of DDP Contracting. In the meantime, the Employer's burden to show a change of status remains anywhere between a medical release and job availability.
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