A recent panel decision has ruled that an injured worker entitled to in-home care treatment can “hire” his wife to provide the care, at the expense of the employer.  In the case of Ignacio Gomez v. Premium Roof Services, Inc., the panel ruled that workers’ compensation Judges do indeed have authority to order an employer/insurer to stop providing in-home care with some agency or another, and instead to pay an applicant’s wife to perform the acts instead.

If the facts sound similar, it is because you are a well-read and well-informed visitor to this most humble of blogs, and have probably seen this post on an insurer being forced to provide employment to an applicant’s illegal immigrant wife as the person providing his in-home care.

Applicant was receiving 10-12 hours of in-home care every week in accordance with the recommendations of an Agreed Medical Evaluator.  However, the agency hired by the insurer in this case proved “inadequate” to applicant’s tastes.  He made the claim that on the rare occasions when the in-home care staff would show up for duty, they would not do their job at all, let alone well.

So applicant petitioned to have this agency “fired” and his wife “hired” to provide the care instead.  Naturally, the defense objected, and with good reason.  Once applicant’s in-home care person is his wife, everything witnessed in the process of that care becomes privileged.  If applicant is faking his injury, his symptoms, or even his need for in-home care, how is the defense to prove it?  While testimony from in-home care staff might work in general, a defendant cannot compel an applicant’s wife to testify.

The reasoning given by the Workers’ Compensation Appeals Board includes the analogy comparing in-home care to a treating physician, noting that, at least with a treating physician, “[a] … relationship which will inspire confidence in the patient is an ingredient aiding in the success of the treatment.”  (citing Zeeb v. Workmen’s Comp. App. Bd.).

But surely in-home care is of a different nature of relationship than a physician.  Trusting someone with the future of one’s health, recovery, and ability to earn a living and enjoy life is not the same as trusting someone to perform in-home care tasks.  In the former, the patient relies on the years of training and experience elegantly concealed by a white coat and a smile.  In the later, applicant can readily supervise the work and see that it is to his satisfaction.

In any case, the remedy here should have been another agency, not applicant’s wife.  If the applicant has a complaint against the next agency, he can have the defendant replace them with a third or a fourth, so long as he documents properly his complaints.  After all, Nurse Case Managers are selected in a similar fashion.