Nov 10

Workers' Compensation Judge Says Company Forced Injured Employee Out of Country

Posted on November 10, 2010 — by Tom Foley III

Calling the conduct “manipulative and ruthless,” a workers’ compensation judge in Wilkes-Barre, Pa., found that a Scranton-based employer forced an injured employee out of the company and, ultimately, out of the country.

Judge Alan R. Harris denied the employer’s petition for suspension of benefits, finding that the company had fired its injured employee, a Swedish national, without cause and then informed the American Embassy in Stockholm and U.S. Immigration and Customs Enforcement that he was living illegally in the United States on a work visa while unemployed.

Harris, in his Sept. 3 decision, granted the employee temporary total disability benefits retroactive to his March 3, 2009, firing date, saying the employer failed to prove that the employee had voluntarily left the workforce by moving to a foreign country.

“It has been found that this claimant did not leave the United State voluntarily,” Harris wrote in the decision. “It has been found as fact that he was terminated by the employer due to his work injury and that the employer saw to it that he would be forced to leave the United States.”

In Alpensjo v. Sandvik Inc., according to Harris, plaintiff Johan Alpensjo was a Swedish national working for an American subsidiary of Swedish-based Sandvik Inc. on an E2 Work Visa.

On Dec. 11, 2008, Alpensjo was injured in a work-related automobile accident and, after being totally disabled for a period of time, returned to work part-time, Harris said.

But on March 3, 2009, according to Harris, Alpensjo was fired.

The defendant’s human resources director, Brian Spencer, wrote a series of letters to the American Embassy in Stockholm and ICE informing them that Alpensjo was let go from the company but was still living in the United States on a work visa, Harris said.

Alpensjo returned to Sweden on May 22, 2009, the day after his visa expired, according to Harris.

On Feb. 15, 2010, Alpensjo testified that he is still suffering from his injury and that, before he was injured, Sandvik never complained about his job performance, nor did they ever warn him or tell him his employment was being reconsidered, according to Harris.

When Alpensjo asked his employer why he was being fired, he was told that Pennsylvania is an at-will employment state and that the employer is not obligated to give him a reason for his termination, Harris said.

Alpensjo testified he was aware that his visa expired May 21 but could not get a plane ticket back to Sweden until the following day, according to Harris.

Alpensjo also testified that he believed he would be arrested if he remained in the United States after his visa expired and was reluctant to return to the United States for the same reason, Harris said.

On Feb. 16, 2010, according to Harris, Spencer testified that Alpensjo was fired for cause.

Spencer said Alpensjo claimed he was single when he was hired but arrived in the United States with a wife and attempted to obtain a work visa for her, according to Harris.

According to Spencer’s testimony. Alpensjo did not cooperate with Sandvik’s immigration counsel by submitting the necessary paperwork to get the visa, Harris said.

Spencer also testified that Alpensjo had complained that his health insurance was denied but it was discovered that he hadn’t filled out the necessary documents from Sandvik’s health insurance carrier, according to Harris.

Spencer said Alpensjo was also attending physical therapy sessions during work hours when he didn’t have to and had enrolled in a computer training course while at the same time complaining that his injury was making it difficult to work because he couldn’t see the computer screen, according to Harris.

But Harris found Spencer to be “frequently evasive” and “not credible” in his testimony while determining that Alpensjo had been “forthright and forthcoming” and was “completely unshaken on cross-examination.”

“Mr. Spencer’s testimony that the claimant was a problematic employee from the beginning is belied by the fact that there is no evidence that the claimant was ever told of his shortcomings,” Harris said.

Harris said Alpensjo’s firing “was an attempt to rid the company of an individual who had become a problem due to his work injury.”

“This judge notes that Mr. Spencer wrote on two occasions to the U.S. Embassy and to the Immigration Officials and quite candidly stated in his letter that he believed that the claimant should be ‘repatriated,'” Harris said.

On March 4, 2010, according to Harris, Sandvik filed a petition for physical examination alleging Alpensjo failed to report for a examination by Dr. Robert Mauthe on July 9, 2009.

But Harris said Sandvik had purposely scheduled the examination to take place after Alpensjo had left the country and that even when the petition was granted under the condition that the employer arrange for Alpensjo to be examined in Sweden, Sandvik failed to do so.

Harris said it appeared that “the purpose of defendant’s conduct all along was to force claimant to leave the United States and go back to Sweden, where the defendant believed it would have no further liability to the claimant.”

And while Harris acknowledged that several appellate-level cases have denied benefits to people who have left the U.S., he said those cases only denied benefits to those who left the American workforce voluntarily.

Alpensjo’s attorney, Michael J. Foley of Foley McLane Foley McDonald & MacGregor in Scranton, could not be reached for comment at press time, nor could Sandvik’s attorney, Kurt C. Walsh of Weber Gallagher Simpson Stapleton Fires & Newby in Scranton.

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