Judge rules against spousal pay in workers' comp case

Workers' compensation insurance is not going to reimburse your spouse for special care he or she is providing.

In a new ruling, the Arizona Court of Appeals rejected arguments by Sabino Carbajal that his wife should be paid for the "attendant care" she provides when he does not have a nurse at his house. Carbajal, who is partially paralyzed as a result of an industrial accident, said there are things he cannot do for himself that require the help of his wife.

But the plea was rebuffed by Judge Patricia Orozco, who wrote the majority opinion.

In the first decision of its kind in Arizona, Orozco said the court understands the purpose of the Workers' Compensation Act and its own obligations in interpreting that law.

"We have been mindful of our duty to liberally construe the Act to effect its purpose of having industry bear its share of the burden of human injury as a cost of doing business," she wrote. "But a liberal construction is not synonymous with a generous interpretation."

But Judge Donn Kessler, in his dissent, said his colleagues were missing the point.

He said the uncontroverted testimony is that Carbajal's wife, Celia, is responsible for everything from dressing him and cutting up his food to waking up in the middle of the night to take him to the bathroom and cleaning his urinal.

"All of these duties were medically necessary because the husband cannot be left alone unsupervised," Kessler wrote. And he noted that Celia was paid by the workers' compensation carrier to be trained to do some chores - at least how to operate her husband's oxygen machine - at the hours an attendant is not there, "and it is undisputed that the insurer has and would have to pay for such care if it were not provided by a spouse."

That, Kessler said, makes the services provided by Celia compensable under the law as "other treatment" her husband requires and not simply a duty she should be expected to provide, without compensation, simply because she married him.

Court records show that Carbajal, who had been an employee of Phelps Dodge, suffered head and spinal injuries in 1999. The right half of his body is paralyzed and he has cognitive problems, though he can inform people of his needs.

A doctor testified that he cannot live alone and requires round-the-clock supervision because he is at risk of falling if he tries to get up and stand. The doctor also said he cannot dress or bathe himself and someone needs to help him to the bathroom in the middle of the night.

The company's insurance carrier is paying for an attendant between eight and 10 hours a day.

Orozco said the carrier is responsible for providing medical care and the services that only trained attendants can offer. She said what the wife is doing does not fit that description.

And the judge said even Carbajal's wife said the care he requires, beyond what the paid attendants provide, could be rendered by a family member and not a health care provider.

Kessler said the majority is ignoring some facts, starting with the point that Celia quit her full-time job to provide care for her husband. And he noted that she testified her responsibilities now are more like taking care of a child.

Beyond that, Kessler said if Carbajal had not been married, the insurance carrier would have to pay someone to provide the care for the balance of the hours that attendants are not now available. He chided the other judges for allowing the insurer to escape its financial obligations because of the fact Carbajal is wed.

"Taken to its logical conclusion, the holding today will permit workers' compensation carriers to deny paid attendant care to claimants on the theory that such paid care is not necessary because it could and should be performed by the claimant's spouse as part of her spousal duties," Kessler wrote. And he said the employer and its insurance company are not entitled to benefit from an injured worker's marital status "regardless of what the ordinary marital duties of spouses may be to care for each other."