Brown v. Eller Outdoor Advertising Co. , 111 Mich. App. 538 ( 1981 )

111 Mich. App. 538 (1981) 314 N.W.2d 685

BROWN
v.
ELLER OUTDOOR ADVERTISING COMPANY.

Docket No. 51038.

Michigan Court of Appeals.

Decided November 30, 1981.

Leonard S. Herman, for plaintiff.

Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen (by Edward K. Pedersen and Jonathan T. Kopit), for defendant.

Before: D.C. RILEY, P.J., and CYNAR and H.R. GAGE,^[*] JJ.

CYNAR, J.

Defendants appeal by leave granted from a decision by the Workers' Compensation Appeal Board (hereinafter appeal board) following a vacation of its previous order in the case and a remand to the appeal board by the Court of Appeals, awarding plaintiff benefits for nursing care provided by his wife. Benefits were awarded at the minimum wage for nurse's aides for all hours of the day that an outside aide was not present in the home with time and a half the hourly rate for all hours in excess of 40 per week.

Plaintiff sustained catastrophic spinal cord injuries in 1969 when he fell from a scaffold during the course of his employment with defendant. The injuries rendered him unable to move any part of his body below his neck with the exception of some useless movement in one of his arms. After undergoing extensive periods of hospitalization, plaintiff returned home in 1970. According to the testimony of plaintiff's wife, the insurer's representative urged plaintiff to purchase a new house so that he could be cared for at home. A house was purchased, the insurer making a 25 percent downpayment. The insurance agent also arranged to pay plaintiff's wife (later plaintiff directly) $100 per week. Defendants claimed that this was compensation for the wife's nursing services; plaintiff's wife claimed that it was for house payments.

Initially, defendants provided two nursing aides for the care of plaintiff in his home. The combined hours of this attendance approximated 12 per day. Plaintiff's wife cared for him for the balance of the hours of each day.

After a time, plaintiff's wife became irritated with the lack of privacy in her home due to the presence of the aides. She spoke to the insurance agent concerning this and suggested that defendants discontinue the use of one of the aides and pay her (plaintiff's wife) for performing these duties. One of the aides thereafter was discontinued, but defendants declined to pay plaintiff's wife. At the time of the hearing in this case the remaining aide worked approximately seven hours per day, seven days per week.

Due to the extent of plaintiff's injuries, his care requires much attention. He cannot feed or clothe himself. His legs, hands, and fingers must be exercised twice a day. He must be turned every two to four hours to prevent bedsores. While in his wheelchair he must be moved approximately every hour. He has no control over his bowels or bladder. He cannot even cough alone. When he needs to cough someone must push on his solar plexus.

On December 14, 1973, plaintiff filed a petition for adjustment of nursing care benefits. The decision of the administrative law judge, affirmed by the appeal board, was vacated by this Court because it erroneously gave binding effect to a prior agreement of the parties without regard to the provisions of MCL 418.831; MSA 17.237(831).

The case was remanded with the following instructions:

"On remand, in arriving at a calculation of the value of services rendered by Mrs. Brown, the board should consider inter alia: the extent of plaintiff's need for specialized care and attention by a nurse's aide or other appropriate caretaker, the number of hours which Mrs. Brown must devote to this specialized care and attention, and the hourly wage for a nurse's aide or other caretaker who could provide the care which plaintiff needs. See Dunaj v Harry Becker Co, 52 Mich. App. 354 (1974), lv den 394 Mich. 838 (1975)."

The focus of the subsequent opinion filed by the appeal board was on whether defendants must pay for the time that plaintiff's wife is "on call". That is, must defendants pay for time during which plaintiff's wife is not performing a specific activity for plaintiff but must remain nearby should her services be necessary? The majority appeal board opinion answered in the affirmative:

"My view has been from the very beginning that plaintiff must have someone with him at all times for nursing and custodial purposes because of his paralytic condition, and that his wife should be directly reimbursed at the appropriate nurse's aide hourly rate for all hours when outside help is not present. I continue to be utterly bewildered by contentions to the contrary. There is certainly nothing untoward in this proposed result, or in awarding around-the-clock nursing care based both on the actual provision of needed personal services and the custodial aspects or necessities of the particular situation."

Defendants' position is accurately stated by the minority opinion of the appeal board:

"While it is argued, as my colleague forcefully argues, that time ``on-call' should be reimbursable time, this position as applied to a family member misses or ignores the dual role filled by a spouse or other resident family members in such a case. ``On call' time can very well be paid to a municipal firefighter who comes from his home to a firestation to await unwanted blazes around-the-clock, or to an outside aide called to the bedside of patient in a home not his own. It is inappropriate to pay same here where the individual to be reimbursed also lives in the same dwelling. If this distinction were not valid and to be made, there would be no reason for the Kushay Court to separate nonreimbursable duties (housecleaning, meal preparation, laundry, etc.) from reimbursable attendance (bathing and dressing a disabled person, serving meals in bed, etc.)."

In Kushay v Sexton Dairy Co, 394 Mich. 69; 228 NW2d 205 (1975), the Supreme Court held that ordinary household tasks are beyond the scope of an employer's obligation. The appeal board minority opinion, quoted above, apparently considers any finding that plaintiff needs 24-hour care tantamount to payment for household tasks. We do not agree.

The Court in Kushay, supra, 74-75, stated what the relevant considerations are:

"The language of the statute [MCL 418.315; MSA 17.237(315)], ``reasonable medical, surgical and hospital services and medicines or other attendance or treatment', focuses on the nature of the service provided, not the status or devotion of the provider of the service. Under the statute, the employer bears the cost of medical services, other attendance and treatment. If services within the statutory intendment are provided by a spouse, the employer is obligated to pay for them.

* * *

"Under the statute it is the employer's duty to provide medical services ``or other attendance or treatment * * * when they are needed'. (Emphasis supplied.) The appeal board did not find that the services rendered by Daisy Kushay were not ``needed'." (Footnote omitted; emphasis added.)

Thus, the fact that a spouse is able to perform household tasks during those times when not actually in attendance with the patient is irrelevant under the circumstances of this case. If the services were provided by someone other than plaintiff's wife, that person would, we assume, pursue his or her own interests within the limits of the job. Such person might read, knit, watch television, or nap during those times in which he or she is simply "on call". The fact that Mrs. Brown might use her "on call" time to perform household tasks does not alter the "nature of the service provided" or the "need" for the service. The Court's reference to household tasks in Kushay was not meant to suggest that under the circumstances of this case the time used in performing each individual service for plaintiff should be added up or that the time used in performing household tasks should be subtracted from the whole. The appeal board found that 24-hour care is needed. Plaintiff's wife provides the service for 17 of those 24 hours and is entitled to payment for the same.^[1]

A finding that 24-hour care is needed addresses the "when they are needed" aspect of the issue, id., 75, and appropriately complies with part of our remand order. Nonetheless, it appears that the appeal board did not adequately direct its attention to the specific "nature of the services" question. Id., 74. Our remand order directed the appeal board to consider plaintiff's need for a nurse's aide or "other appropriate caretaker". Rather than make a finding as to the type of care needed, the appeal board opinion uses the phrases "nursing care" and "custodial attendance" interchangeably where they may or may not be interchangeable under the circumstances of this case. The fact that plaintiff needs 24-hour care does not automatically mean that only nursing aide services will do. Perhaps some "other appropriate caretaker" could handle the care during some portion of the 24-hour period. The appeal board opinion does not address this question adequately.

Remanded for further proceedings not inconsistent with this opinion. We do not retain jurisdiction.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] See Filion v Art Himbault Trucking Co, 103 Mich. App. 471; 302 NW2d 892 (1981). The defendants in Filion similarly argued that an award for nursing care benefits should be calculated on the amount of time the injured employee's parents actually spent in performing nursing services for their son. This Court upheld an appeal board award of 8 hours in each 24-hour period. The plaintiffs in that case did not claim that they were entitled to any more than eight hours.