In the case of Felix Nino Mota v. Allgreen Landscape, applicant sustained injury to various body parts, and his claim was eventually resolved with a stipulated award of 89% with future medical care, namely in-home care which his wife began providing.  Mrs. Mota entered the country legally but did not establish she has the right to work in the United States.  She learned how to take care of her husband from his nurses and doctor.

Applicant’s wife sought to have defendant pay the value of her in-home care services.  Defendant countered with an offer to provide 16 to 18 hours of home health services daily with a licensed vocational nurse.  Applicant refused.

Following a trial, the workers’ compensation judge ruled that the Immigration Reform and Control Act of 1986 does not bar applicant’s wife from receiving the “reasonable value of her services.”

In denying defendant’s petition for reconsideration, the Workers’ Compensation Appeals Board held that Mrs. Mota’s services were not subject to utilization review, even though they were never requested by a treating physician, because the services began before Labor Code section 4610 became effective, and because defendant was aware the services were being provided.

With regard to the issue of Mrs. Mota’s work status, the Workers’ Compensation Appeals Board held that applicant’s wife is not defendant’s employee, so the question of federal law does not arise.

The basic result of this case has two equally alarming effects: (1) the defendant is no longer allowed to control treatment, and must allow applicant’s wife to provide in-home care rather than providing a professional of its choice; and (2) the defendant is forced to provide payment to a person who has no right to work in the United States in violation of federal law. In fact, it is possible that the WCAB would force an employer to pay an illegal immigrant to provide in-home services to an employee who was also discovered to be an illegal immigrant.

The WCAB relies on the reasoning that “[i]f applicant had chosen to move to Mexico after his injury for medical treatment and rehabilitation, and if Mrs. Mota had provided exactly the same services, defendant would be liable for those services, and there would be no issue as to her employment status or her right to reimbursement.”  But Mrs. Mota has the right to work in Mexico, and not in the United States.

Perhaps the defendant might consider retaining a lawyer for a federal removal action to see if the federal law is really as undisturbed as the WCAB suggests.  After all, if the federal government can so casually disrupt settlement proceedings with its Medicare Set-aside Analysis requirements, invalidating a WCAB decision should be no problem.  In any case, applicant’s attorneys may have stumbled upon a way to gather income for their clients, regardless of work status, by having non-work eligible spouses provide “home care.”