Friday, May 18, 2012

Immigration Status and Home Care Reimbursement

Do you think that a non-citizen immigrant should be reimbursed for the value of care that she provides to her severely injured husband who received a big stipulated award for workers' compensation benefits?

Everest National didn't think so.

But the California Workers' Compensation Appeals Board (WCAB) did. And the 4th District Court of Appeals didn't disagree.

In Allgreen Landscapes et al. v. WCAB et al., No. G046627, Teodora Mota asserted a lien for homecare services for her husband.

Mota's husband was involved in a car accident in August 2001, which left him comatose for over a month and permanently disabled. He sustained injuries to his head, neck, jaw, low back, right leg, right shoulder, left wrist, chest, liver, nose, eyes, gums, urinary tract and gastrointestinal system, which affected his sense of smell, hearing and psyche, and rendered him impotent.

He received an 89% stipulated award for permanent disability and future medical care.

Teodora Mota filed a lien for home care 2 years later.

At trial she testified without contradiction that she had cared for her husband 24-hours a day since his discharge from the hospital. Mota said she regularly fed him, took him for walks, administered his medications, and placed his catheter.

The trial judge awarded Mota reimbursement for services at the median rate for a licensed vocational nurse in Orange County.

Everest argued that the Immigration Reform and Control Act of 1986 barred Mota's claim since she was an illegal alien and was not eligible to work in the United States. 

In a panel decision this January, the WCAB noted that Mota undisputedly provided care to her husband for which Everest did not deny liability.

The WCAB reasoned that had she elected to move to Mexico for medical treatment and rehabilitation for her husband and provided the exact same care for him there, her employment status or right to reimbursement would not be an issue. That she chose to stay in the United States should not change this result, the panel said.

This is a difficult situation but I think the WCAB got the result right. It is not so much about "working" in the United States as it is about providing proper compensation.

I don't know the immigration status of Mota's husband but as we know that is irrelevant to the payment of compensation in a work injury in California. Immigration status is only relevant to vocational status post injury.

In Mota's case, that she is providing for her husband 24 hours a day, according to the facts, removes her from the labor pool in which she could otherwise generate income for the family - be it illegally in the United States, or legally in Mexico.

Everest would otherwise have had to pay for Mota's husband's care, so when one really gets down to brass tacks Everest didn't lose anything - it was responsible for the care regardless of the provider, and potentially even more expensive care.


  1. David,

    We’re a ‘Nation of Laws’. We’re nothing; we have nothing, if we don’t stick to the Rule of Law. I’m assuming that Ms. Mota’s illegal status was established and is not in dispute. That being the case, the rule is she cannot work in the United States.

    Moreover, this is a Federal law. Regardless of how the state law rules, it cannot overturn, or supersede Federal law. The letter of the law should never be bent in order to achieve ‘fairness, reasonableness, or justice’. Those words are too vague and different people have different interpretations of the same word. Once we go down that road, we’re on the slippery slope of anarchy.

    That having been said, I would split this right down the middle. I would pay the lien for services rendered. After all, she did provide the services. The carrier would have been responsible to pay someone. The rate that was awarded was the standard rate. So, the carrier is not damaged in any way. In fact, by taking advantage of the ‘letter of the law’, the carrier would have been unjustly enriched had Ms. Mota not been paid.

    But, I would also rule that, due to her illegal status, no future work will be compensated. They can get a legal worker to perform the services here. Or, they could move back to Mexico and she could legally resume caring for her husband and getting paid.

    The logic that she ‘would have been legally working’ if she had been in Mexico, so she’s entitled to the money for services rendered in the US (where she is not a legal resident), is seriously flawed.

    We live in a world of International, National, and local government laws. Each entity is entitled to pass laws and enforce their laws. If there are conflicts between two governmental bodies, they need to be resolved. But in this case, there is no conflict.

  2. Good observations and comments Bill. I don't know what the deal was going forward after the award - it is possible that the carrier decided that hiring professional services is cheaper, after this lesson, so they went out and procured the necessary care rather than pay the spouse (which would make sense for the family too because then the spouse could return to more productive remunerative work presumably). At least with respect to CA law, the Rule of Law was followed. It is of much more vague interpretation as to whether Federal or International law was violated however.