Carbajal v. INDUSTRIAL COM'N OF ARIZONA

KESSLER, P.J.,

dissenting.

¶ 25 I respectfully dissent. The question presented is whether a spouse who quits her full-time job to provide extensive attendant care for her partially paralyzed husband is merely performing duties commonly expected of a spouse or is performing “other treatment” compensable under Arizona Revised Statutes (“A.R.S.”) section 23-1062(A) (1995). In this case, the spouse provided extensive care for her disabled husband — dressing him, cutting up his food, bathing him, cleaning him when he soils himself, waking up in the middle of the night to get him to the bathroom, giving him medications, cheeking his oxygen tanks, cleaning his urinal, and supervising him so that he does not fall and hurt himself. All of these duties were medically necessary because the husband cannot be left alone unsupervised. Moreover, the caretaker spouse was paid by the workers’ compensation carrier to be trained to do some of these duties and it is undisputed that the insurer has and would have to pay for such care if it were not provided by a spouse. Given that this case involves interpretation of a statute we are required to construe liberally to provide compensation, I agree with decisions of other modem courts that this kind of trained attendant care is compensable as “other treatment” and not merely a “duty” of a spouse which is expected as part of the marital commitment.

FACTUAL AND PROCEDURAL HISTORY

¶ 26 The facts in this case are essentially undisputed. Mr. Carbajal was severely injured in a 1999 compensable, work-related accident for which compensation has been provided under our workers’ compensation laws. He suffered head and spinal injuries. He now has right hemiparesis with residual spasticity into and weakness of the arm and leg and has cognitive problems, although he can let people know his needs. The only physician to testify was Mr. Carbajal’s treating physician. He stated that while Mr. Carbajal was continent and has an idea of some basic functions, “[h]e cannot live alone” and needs twenty-four hour a day, seven-day a week supervision because he is at risk of falling if he tries to get up and stand. The doctor testified Mr. Carbajal cannot bathe himself, cannot dress himself, has to have someone get him out of bed and to get him to the bathroom especially because someone of Mr. Carbajal’s age will have to go to the bathroom in the middle of the night.⁵ Mr. Carbajal also has a tendency to choke on his food so the food has to be set up for him. Thus, as the physician testified, it is undisputed and was found by the administrative law judge, Mr. Carbajal has to have someone help him all the time in some capacity or be supervised in a group setting.

¶ 27 Mr. Carbajal’s treating physician’s report stated that some of the attendant care Mr. Carbajal needs requires skilled activity and not just supervision. While the doctor testified that the care and supervision need not be by a medically trained person or on a one-to-one basis, he clarified that Mr. Carbajal cannot bathe himself completely, he cannot dress himself, he has to have someone help him get out of bed if he needs to go to the bathroom and he is not able to do a lot of things himself but can voice them when he needs them. The treating physician further testified that anyone who bathed and cleaned Mr. Carbajal had to be a professional and understand how to do that with his disabilities and challenges, although that could be done by a family member if they were able to do that.⁶ It was undisputed that Mrs. Carbajal received training in how to transport her husband from a bed into a wheelchair and get him to the toilet as well as how to check and maintain his oxygen tank at night. It would have been dangerous for Mr. Carbajal if the oxygen tanks did not work properly. The carrier paid for that training.

¶28 Mr. and Mrs. Carbajal lived in Bag-dad, Arizona at the time of the industrial accident. While the Carbajals lived in Bag-dad, the respondent employer and insurer (“insurer”) were providing professional help for Mr. Carbajal through an agency in Phoenix and even paid for an apartment for Mr. Carbajal’s attendants in Bagdad. The insurer does not dispute that attendant service was compensable. Mr. Carbajal was placed into care centers both while he was in Bag-dad and later in Scottsdale.

¶ 29 Mrs. Carbajal quit her full-time job to provide attendant care for her husband while he is not in the care center. The insurer pays for attendants to pick Mr. Carbajal up and take him to and from the care center and provides attendant care for several hours a day. The insurer does not dispute that the services those attendants provide is compensable. If those attendants do not arrive or are late, Mrs. Carbajal must provide their services, although this happens less often in Phoenix. During those times, Mrs. Carbajal does everything the attendants paid by the insurer would normally do.

¶ 30 The typical weekday for the Carbajals is as follows. Attendants arrive at the Carbajals’ home at approximately 6 a.m., get him up and do his shower, and help him get ready to go to the care center. This includes helping him use his walker. Mrs. Carbajal feeds him and gives him his medications. The attendants then take him in a van to the care center. At about 3:30 in the afternoon, the attendants pick him up at the care center, drive him home, and then leave. Mrs. Carbajal is then left alone with Mr. Carbajal and often has to clean him up because he has soiled himself at the care center. She also has to feed him,⁷ remove his brace and change his clothes. At about 6:30 in the evening, an attendant arrives and stays with the Carbajals until about 9:30 p.m. when the attendant gets him ready for bed. From 9:30 p.m. until the next morning, Mrs. Carbajal is the sole caregiver for Mr. Carbajal. Mrs. Carbajal has to wake up in the middle of the night to assist her husband into a wheelchair to go to the bathroom to move his bowels. Mr. Carbajal has to go to the bathroom several times a night and sometimes is there for up to forty-five minutes. If he soils himself, Mrs. Carbajal has to clean him up. While Mr. Carbajal can use a urinal to pass urine, he sometimes has spills and Mrs. Carbajal has to clean him up and change the sheets. During the night, Mrs. Carbajal also has to check Mr. Carbajal’s oxygen tanks to make sure they are working properly and adjust them.

¶ 31 During the weekends, their routine is slightly different. On Saturdays, Mr. Carbajal does not go to the care center and the paid attendant arrives at approximately 7 a.m. and attends to Mr. Carbajal until about 9:30 a.m. Mrs. Carbajal must then care for Mr. Carbajal until about 6:30 p.m. when the attendant returns with the attendant leaving around 9:30 p.m. On Sundays, the attendant takes Mr. Carbajal to his church and is with him from around 7 a.m. until 1 p.m. and then again from approximately 6:30 p.m. to 9:30 p.m.

¶32 Mrs. Carbajal pithily described the care she provided by explaining that this was not the man she married, it was more like taking care of a child.

¶ 33 The undisputed evidence is that the insurer would pay for family members in other cases to provide such service when no agency could provide attendant care.

¶34 The Carbajals initiated an investigation whether the above attendant services provided by her were compensable under section 23-1062(A). Mrs. Carbajal sought compensation for the attendant care she provided for three hours a day during the weekdays when she has to care for Mr. Carbajal without any attendant care and for the evenings when she has to get him into his wheelchair to go to and from the bathroom, ensure the oxygen tanks are working properly and clean up after him if he soils himself or spills the urinal. The respondents do not seem to dispute that the care at issue was reasonable, that they were obligated to pay for such care if provided by attendants or an agency or for such care if it was provided in a care center. Respondents appear not to dispute that when such care was provided by agencies, they paid for it.

¶ 35 An evidentiary hearing was held. After noting that there was really no factual dispute, the ALJ determined that the above attendant care provided by Mrs. Carbajal was not “other treatment” under the statute because it was care that was traditionally expected to be provided as part of a marriage commitment. The ALJ added that such care was not compensable even though a paid attendant would be required in Mrs. Carbajal’s absence.

DISCUSSION

¶ 36 We defer to the ALJ’s factual findings and consider the evidence in the light most favorable to upholding the award. PF Chang’s v. Indus. Comm’n, 216 Ariz. 344, 347, ¶ 13, 166 P.3d 135, 138 (App.2007). Where the material facts are undisputed, the issue becomes a question of law which we review independently. Id.; Finnegan v. Indus. Comm’n, 157 Ariz. 108, 109, 755 P.2d 413, 414 (1988). In construing the statute, we interpret it “liberally, remedially, and in a manner ensuring that injured employees receive maximum available benefits” because the overriding purpose of the workers’ compensation system is to provide a claimant the opportunity to be made whole to the fullest possible extent. Aitken v. Indus. Comm’n, 183 Ariz. 387, 392, 904 P.2d 456, 461 (1995). Clear and unambiguous statutory language must be “given its plain meaning unless absurd or impossible consequences will result.” Dunn v. Indus. Comm’n, 177 Ariz. 190, 194, 866 P.2d 858, 862 (1994). We must construe the workers’ compensation statutes to give effect to the legislative intent of placing the burden of injury on the industry. Id. Where there is any ambiguity or doubt in the statutory language, we must construe it in favor of compensability to relieve employees of the burden of compensable injury. Wiley v. Indus. Comm’n, 174 Ariz. 94, 99-100, 847 P.2d 595, 600-01 (1993); Mead v. American Smelting & Refining Co., 1 Ariz.App. 73, 76, 399 P.2d 694, 697 (1965) (citing English v. Indus. Comm’n, 73 Ariz. 86, 89, 237 P.2d 815, 817 (1951)). In construing the act, we of course begin with the express language of the statute. Wiley, 174 Ariz. at 97, 847 P.2d at 598. As with other statutes, we must give meaning to each word in the statute, not making any of them superfluous. Obregon v. Indus. Comm’n, 217 Ariz. 612, 614-15, ¶¶ 11, 16, 177 P.3d 873, 875-76 (App.2008).

1. Statutory Interpretation

¶ 37 Here, as the ALJ noted, the facts are really not in dispute. Thus, the issue presented is one of statutory interpretation, Finnegan, 157 Ariz. at 109, 755 P.2d at 414; PF Chang’s, 216 Ariz. at 347, ¶ 13, 166 P.3d at 138, which we must construe liberally in favor of compensability and making the employee whole from his compensable injuries. Aitken, 183 Ariz. at 392, 904 P.2d at 461; Dunn, 177 Ariz. at 194, 866 P.2d at 862; Wiley, 174 Ariz. at 99-100, 847 P.2d at 600-01.

¶38 The issue presented is what “other treatment” means in section 23-1062(A). That statute provides, in pertinent part, that

upon notice to the employer, every injured employee shall receive medical, surgical and hospital benefits or other treatment, nursing, medicine, surgical supplies, crutches and other apparatus ... reasonably required ... during the period of disability. (Emphasis supplied).

¶ 39 The majority concludes that the term “other treatment” must mean “other medical treatment.” Supra, ¶ 17. While I agree with the majority that the term “other treatment” cannot mean other normal housekeeping functions which spouses expect to do for and with each other, such as cleaning, cooking, taking out the garbage and normal household repairs, I conclude that “other treatment” includes the other types of attendant care Mrs. Carbajal provided, including the on-call care at nights and that such care is not normal “services” which a married couple expect each other to perform. I reach this conclusions for several reasons.

¶40 The majority’s conclusion misinterprets section 23-1062(A). As noted above, § 23-1062(A) does not provide compensation for “other medical treatment”; it provides for compensation for “medical, surgical and

hospital benefits or other treatment.” (Emphasis supplied). By adding the term “medical” to “other treatment,” the majority adds words the legislature could have added, but did not. Indeed, the majority’s construction of the statute would render the term “other treatment” superfluous because medical benefits are already covered by the statute. Obregon, 217 Ariz. at 614-15, ¶¶ 11, 16, 177 P.3d at 875-76 (court should interpret statute to give meaning to each word, not making any word superfluous or duplicative). Even if the statute were ambiguous, which it is not, the majority’s construction of the statute also narrowly interprets the workers’ compensation statutes when we are required to interpret them liberally to provide compensation. Aitken, 183 Ariz. at 392, 904 P.2d at 461; Dunn, 177 Ariz. at 194, 866 P.2d at 862; Wiley, 174 Ariz. at 99-100, 847 P.2d at 600-01.

¶ 41 The majority contends that its interpretation of the statute is guided by the principle of ejusdem generis so that the reference to “medical, surgical and hospital” also modifies the term “or other treatment.” Supra, ¶¶ 17-18. There are at least three problems with that argument. Initially, when a statute is clear on its face, we are bound by what the legislature has said and are not free to interpret it by applying rules of interpretation. Kimu P. v. Ariz. Dep’t of Econ. Sec., 218 Ariz. 39, 43, ¶ 16, 178 P.3d 511, 515 (App.2008). See also State v. Christian, 205 Ariz. 64, 66, ¶ 6, 66 P.3d 1241, 1243 (2003); Dunn, 177 Ariz. at 194, 866 P.2d at 862. As the Arizona Supreme Court noted in rejecting an ejusdem generis argument to a clear constitutional provision, “venerable principles of statutory construction [would be violated because] ‘[w]here a constitutional provision is clear, no judicial construction is required or proper.’ ” State v. Roscoe, 185 Ariz. 68, 71, 912 P.2d 1297, 1300 (1996) (quoting Pinetop-Lakeside Sanitary Dist. v. Ferguson, 129 Ariz. 300, 302, 630 P.2d 1032, 1034 (1981)). This is because the ultimate goal is to give effect to the legislative intent and the best guide for such goal is the clear language of a statute. United Dairymen of Arizona v. Rawlings, 217 Ariz. 592, 596, ¶ 12, 177 P.3d 334, 338 (App.2008). Here, the language is clear — the legislature used the terms “medical, surgical and hospital benefits or other treatment.” If it had wanted to limit the compensability of services to “medical, surgical and hospital benefits or treatments,” it would have not added “or other treatment.” Applying ejusdem generis here would render “other” superfluous. Obregon, 217 Ariz. at 614-15, ¶¶ 11, 16, 177 P.3d at 875-76.⁸

¶ 42 Additionally, Hughes v. Indus. Comm’n, 188 Ariz. 150, 153-54, 933 P.2d 1218, 1221-22 (App.1996), cited by the majority in ¶ 19 does not assist the majority’s ejusdem generis analysis because it was premised on rejecting care for a third person, not the claimant. As the majority explains, Hughes involved a request for child care expenses so that the claimant could go and receive medical treatment for her industrial injury. Id. The court in Hughes noted that the statute had to be interpreted liberally to provide compensation, noting that “other” types of services needed by a claimant to obtain compensable services were in themselves compensable as “other services,” such as a new van for the claimant to get services or travel reimbursement for obtaining covered treatment. Id. at 153, 933 P.2d at 1221 (citing Terry Grantham Co. v. Indus. Comm’n, 154 Ariz. 180, 183, 741 P.2d 313, 316 (App.1987) and Martinez v. Indus. Comm’n, 175 Ariz. 319, 322, 856 P.2d 1197, 1200 (App. 1993)). Clearly a van or travel is not “medical service.” The court then held that child care expenses were distinguishable because “[cjhild care, in contrast, is a service provided to a third person, not to the injured worker. The services itself is not generally considered medical treatment.” Hughes, 188 Ariz. at 154, 933 P.2d at 1222 (emphasis supplied). Here, in contrast, the care was for the claimant, not a third person.

¶ 43 Moreover, even if we were to narrowly interpret “other treatment” to mean only “medical, surgical [and] hospital benefits [and] treatment,” the record shows that the care provided by Mrs. Carbajal was not merely those of one spouse for another in the everyday marital situation, but involved some skilled attendant care well beyond the normal marital situation. It included checking Mr. Carbajal’s oxygen tanks, providing all night supervision and assisting him to get out of bed and go to and from (and in the bathroom) so that he would not fall, cutting up his food, and cleaning him when he soiled himself. This is the same type of necessary, compensable care which would have been provided by third persons paid by the insurer if Mrs. Carbajal were not present or able to perform them.

¶44 The majority’s erroneous interpretation of the statute is highlighted by its reliance on Warren Trucking Co. v. Chandler, 221 Va. 1108, 277 S.E.2d 488 (1981), and Kenbridge Const. Co. v. Poole, 25 Va.App. 115, 486 S.E.2d 567 (1997). In Warren Trucking, the Virginia Supreme Court held that attendant care similar to the care provided here was not compensable unless it was medical in nature, that is, it had to be provided by someone with a medical background or subject to the direction and control of a physician. 277 S.E.2d at 493. In Kenbndge, the court found that more medically-oriented services were compensable. 486 S.E.2d at 569-70. Those conclusions may be correct under Virginia law because the court was construing a statute which was significantly different than our statute. The Virginia statute limited compensation to services provided by “a physician ... and such other necessary medical attention, ... as the nature of the injury may require ... and in addition, such surgical and hospital service and supplies as may be deemed necessary by the attending physician____” 277 S.E.2d at 492 (quoting Va.Code Ann. § 65.1-88) (emphasis supplied). In stark contrast, our statute is much broader, not limiting care to medical treatment but providing compensation for “medical ... benefits or other treatment^]” A.R.S. § 23-1062(A) (emphasis supplied). We should not rely on statutes from other jurisdictions in which the statutory language is significantly different than our own. Tartaglia v. Indus. Comm’n, 177 Ariz. 199, 200-01, 866 P.2d 867, 868-69 (1994).

¶45 Moreover, the majority’s conclusion has an inherent contradiction; if attendant services are not “other treatment,” then why would an insurer have to pay for the exact same care by third persons regardless of their medical training simply because they are not the spouse of the injured person, e.g., third party home-caregivers or care facilities?

2. The Court’s Conclusion Conflicts with the Majority of Modern Courts

¶ 46 Many jurisdictions across the country have held that the kind of care provided here is compensable under their workers’ compensation statutes as care not normally provided by a spouse as part of the marriage commitment. See Warren J. Appel, Annotation, Workers’ Compensation: Recovery for Home Service Provided by Spouse, 67 A.L.R.4th 765, §§ 9-10 (1989 and 2007 Supp.) (“Appel”). See also 82 Am.Jur.2d Workers’ Compensation § 453 (2008) (several courts have held that services in the nature of nursing care provided to an injured worker by his or her spouse are generally compensable as medical benefits; “such duties as shopping or cooking have been deemed ordinary and therefore noneompensable services, while assistance in bathing, dressing, toileting, and moving about the house has in several cases been held compensable.”).

¶ 47 Several eases show that the types of services here should be compensable under our “other treatments” standard. In Close v. Superior Excavating Co., 166 Vt. 318, 693 A.2d 729 (1997), the injured spouse had a severe head injury and needed supervision 24r-hours a day. He could not take medication on his own, could not prepare his own meals and could not dress himself without assistance. 693 A.2d at 730. The claimant’s wife provided tasks assigned to her by claimant’s physician including administering and monitoring medications, keeping a log of her husband’s behavior and being on-call in case he needed assistance. Id. This is similar to the factual scenario here in which Mrs. Carbajal had received training paid for by the carrier on how to move her husband from bed to a wheelchair. She also had been trained to test his oxygen tanks at night, and had to be on call all night because he was subject to falling and she would have to help him go to the bathroom. She also had to cut up his food, give him his medications and clean him if he soiled himself.

¶48 The court in Close had to apply a statute which provided for compensation for “reasonable surgical, medical and nursing services.” Id. at 731. It rejected Warren Trucking and affirmed the award compensating for nursing services, noting that the spousal care went beyond ordinary household duties and that courts had interpreted “nursing services” to include services such as 24-hour care, bathing, giving medications, emptying mináis, assisting in moving, assisting in dressing and going to the bathroom and the need for on-call care. Id. at 731-32 (collecting eases). Here, of course, the case is stronger for compensating Mrs. Carbajal for those exact services because the statute includes, but is not limited to, “nursing” services, but also expressly provides compensation for “other treatment.” Indeed, the leading authority on workers’ compensation laws explains that while normal household duties would not qualify for compensation, the majority of courts now hold that duties by a spouse which are more like “nursing” duties are compensable. 5 Arthur Larson and Lex K. Larson, Larson’S Workers’ Compensation Laws § 94.03[4][b] and [d] (2007) (“Larson”).⁹

¶49 Similarly, in Edward Kraemer & Sons, Inc. v. Downey, 852 P.2d 1286, 1288-89 (Colo.Ct.App.1992), the court held that a carrier had to compensate a claimant for a spouse’s assistance in eating, bathing, preparing him for bed at night and showering. It also held that compensation was due for the spouse being available on an on-call basis in case her husband had an emergency even if she was also doing household work at the same time. As the court reasoned, a third-party attendant being on-call would be entitled to payment even if he or she could do other activities and in either case the caregiver was passively providing attendant care. 852 P.2d at 1289; see also Brown v. Eller Outdoor Adver. Co., 111 Mich.App. 538, 314 N.W.2d 685, 687-88 (1981) (on-call services of wife can be compensable even if wife could perform household chores during that period).

¶ 50 In Kushay v. Sexton Dairy Co., 394 Mich. 69, 228 N.W.2d 205 (1975), the husband had become permanently disabled by a compensable injury. He spent most of his time in bed and moved about only in a wheelchair or with canes. He suffered from pain in his legs from squeezing of the spinal nerves. 228 N.W.2d at 207. His wife bathed him, helped him dress, gave him medication, served meals in bed, helped him to the bathroom, and drove him to appointments. Id. The relevant statute provided that compensable care included “reasonable medical, surgical and hospital services and medicines or other attendance or treatment recognized by the laws of this state as legal, when they are needed.” Id. at 206 (internal quotations omitted). The workers’ compensation appeals board rejected the claim for compensation on the ground that her services were those any dutiful wife would provide her husband. Id. The supreme court reversed. Reviewing prior cases which appeared to be irreconcilable with the appeals board’s decision, the court attributed the conflict to the standard of “whether the services are beyond ordinary wifely duties or conversely, those which any conscientious wife would give her husband[.]” Id. at 208 (internal quotations omitted). The court held that the language of the statute “focuses on the service provided, not the status of devotion of the provider.” Id. It held that while ordinary household tasks are not within the statute, those services would include house cleaning, preparation of meals and washing of clothes. In contrast, serving “meals in bed and bathing, dressing, and escorting a disabled person are not ordinary household tasks. That a ‘conscientious’ spouse may in fact perform these services does not diminish the employer’s duty to compensate him or her as the person who discharges the employer’s duty to provide them.” Id.

¶ 51 Other courts have also held that services such as those provided by Mrs. Carbajal are not deemed ordinary household duties, but are more in the nature of custodial or nursing duties. E.g., Don Harris Plumbing Co. v. Henderson, 454 So.2d 745, 746 (Fla.Dist.Ct.App.1984) (under statute permitting compensation for custodial care by family member if not those normally provided by family members gratuitously, services such as dressing, administering medication, assisting with sanitary functions, assisting in rising and donning therapeutic apparatus are compensable); Part Gibson Oil Works v. Estate of Hughes, 823 So.2d 613, 614 — 16, ¶¶ 1, 5, 9 (Miss.Ct.App.2002) (when employee was restricted to using wheelchair and crutches, wife’s dispensing medication, doing massages, assisting him in bathing, getting up at night to change sheets if he had an accident and assisting him in getting from bed to wheelchair and when he fell were compensable as nursing services and were not mere household duties regardless of whether wife willingly performed tasks or whether they were nontechnical tasks routinely performed by orderlies or practical nurses); Stephens v. Crane Trucking, Inc., 446 S.W.2d 772, 781-82 (Mo.1969) (wife’s providing of care in form of helping husband go to bathroom without braces, putting on and taking off braces, helping him dress himself, shaving and keeping him from falling were above and beyond services ordinarily performed by one spouse for another); Breckle v. Hawk’s Nest, Inc., 980 S.W.2d 192, 193-94 (Mo.Ct.App.1998), overruled, on other grounds by Hampton, v. Big Boy Steel Erection, 121 S.W.3d 220, 226 (Mo.2003) (reversing denial of award for spouse’s services in observing and supervising husband who was apt to fall down, bringing meals to him, getting him dressed and bathing him although husband could walk with a cane; fact that wife was registered nurse did not preclude award of compensation). See also Henson v. Workmen’s Comp. Appeals Bd., 27 Cal.App.3d 452, 455-58, 462, 103 Cal. Rptr. 785 (1972) (reversing denial of claim for spouse’s services in emptying urinal, helping him bathe, helping him dress, accompanying him to bathroom so he would not fall, providing medications, getting up in middle of night to assist him when he was in pain; court determined services were in the form of practical nursing services and that employer and earner were not third party beneficiaries to a marriage contract to contend spouse has obligation to provide such care which the employer or carrier would otherwise be obligated to provide). Cf. A.G. Crunkleton Elec. Co. v. Barkdoll, 227 Md. 364, 177 A.2d 252, 256 (1962) (broadly construing “nursing” care under workers’ compensation statute to encompass care and attendance necessary in each ease and as not contemplated by the usual marital relationship and can include practical nursing services).

3. Mrs. Carbajal Provides Trained Care

¶ 52 The majority also errs in concluding that Mrs. Carbajal’s attendant care was not “medically required” and Mrs. Carbajal was not providing trained care. As the record shows, attendant care in this case was medically required because the treating physician’s undisputed testimony was that Mr. Carbajal could never be left alone since he was at risk of injury by falling if he tried to get up and was at risk of choking while eating. While Mr. Carbajal could at times go to the bathroom on his own, he had recently had problems falling and had to have assistance in sitting on the toilet. Mrs. Carbajal received training for some of the care she provided. Moreover, if a third-party attendant, trained or not, provided this care, it is undisputed that it would be and had been paid for by the carrier. This is the same type of on-call care needed and held compensable in Close, Kraemer and those myriad other cases finding care provided by a spouse to be compensable as beyond the normal duties of the marital commitment. Appel, 67 A.L.R.4th 765, § 9.

¶ 53 Mrs. Carbajal had to be present at all times an insurer-compensated attendant was not present. She had to provide on-call care, had to help her husband get to the bathroom, had to clean urinals and to clean him if he soiled himself, had to remove his brace, had to give him medications, had to set up his food so he did not choke and had to check and adjust his oxygen tanks. Medically, she or someone else had to be there all night to assist Mr. Carbajal to get up and use the bathroom because he was at the risk of falling. See Downey, 852 P.2d at 1288-89 (on-call availability was compensable even if caregiver was doing other activities while being available to care for husband if he needed it). The only difference between the care provided by a third-party attendant or assisted living which the insurer did not dispute was compensable, and the attendant care Mrs. Carbajal was providing, was that Mrs. Carbajal was Mr. Carbajal’s wife. While the majority claims that the care provided was merely attendant services not requiring any skill, supra, ¶ 20, it is undisputed that Mrs. Carbajal had to be trained to move Mr. Carbajal out of bed without injuring him in the middle of the night and had to be trained to monitor his oxygen tanks at night. Moreover, while the majority interprets the physician’s testimony as merely requiring unskilled care, the physician’s report and testimony clearly stated that some of Mrs. Carbajal’s duties required “skilled activity that requires more than just supervision” and his testimony reflected that some of these skilled needs could be met by family members “[i]f they’re able to do that.” As the physician was careful to emphasize, it was not that Mr. Carbajal’s needs at home could be met by unskilled care, only that “not all” of his home needs would require skilled healthcare provided on a one-on-one basis.

¶ 54 That the services provided here, other than simple family tasks unrelated to Mr. Carbajal’s condition, were compensable is supported by the fact Mrs. Carbajal had to leave her full-time work to care for her husband. As one of the leading authorities in workers’ compensation points out, this fact, while not essential to the claim, strengthens a conclusion that the care should be compensable. Larson at § 94.03[4][c].¹⁰

4. Public Policy

¶ 55 Finally, the majority’s holding is contrary to the public policy underlying the workers’ compensation scheme — to place the reasonable expenses relating to compensable injuries on the industry and to ensure the statute is interpreted to make the successful claimant whole. Aitken, 183 Ariz. at 392, 904 P.2d at 461; Dunn, 177 Ariz. at 194, 866 P.2d at 862. The only difference many of the tasks Mrs. Carbajal undertook to care for Mr. Carbajal’s condition and the undisputed compensable care which would have been provided by skilled or unskilled attendants is that Mrs. Carbajal is Mr. Carbajal’s spouse. 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.¹¹ Putting aside whether this error would be more manifestly recognized if the caring spouse was a husband who had quit his full-time job to care for his claimant-wife,¹² such a result permits employers and carriers to avoid their responsibility to provide compensation for reasonable and necessary compensable care under the workers’ compensation statutes. Regardless of what the ordinary marital duties of spouses may be to care for each other, respondents are not third-party beneficiaries of the marital contract so as to permit them to avoid their duties to provide reasonably necessary “other” treatment. Henson, 27 Cal. App.3d at 458,103 Cal.Rptr. 785.

CONCLUSION

¶ 56 For all of the above reasons, I would hold that the attendant care services Mrs. Carbajal has provided in lieu of paid attendants or assisted living which are directly related to Mr. Carbajal’s injuries, including her on-call assistance at night, are “other treatment” and are compensable under section 23-1062CA).

5 . A nurse case manager involved with Mr. Carbajal's care testified without contradiction that while Mr. Carbajal's bathroom had been modified so that he could use it independently and he had been able to go to the bathroom independently, he had recently broken three toilet seats at a care center and now had to have someone help him sit down to use the toilet.

6 . The majority quotes from the doctor’s testimony that Mr. Carbajal did not need a licensed health care provider or skilled caregiver, just an attendant. Supra, ¶ 8. The record is slightly different however. The full testimony was:

Q. Do you picture this person as a licensed health care provider or skilled caregiver?

A. Not all the time, no. I believe maybe some of these things, just an attendant of sorts. And we have attendants that are really not, for instance, skilled nurses or things like that that tend to his needs.

Q. And you have outlined in your report that you thought that this could be done by a family member that’s familiar with his needs?

A. If they're able to do that. Yes.

Emphasis supplied.

Equally important, in both his report and testimony, the physician explained that the seven days a week attendant care Mr. Carbajal requires “is skilled activity that requires more than just supervision" and Mrs. Carbajal was trained to move her husband from the bed and thought that nurses had educated Mrs. Carbajal on how to care for her husband. (Emphasis supplied).

7 . I assume that this means cutting up his food because the physician witness testified that had to be done because Mr. Carbajal could choke when swallowing.

8 . The majority's argument that simply because it comes to a different conclusion as to the clarity of the statutory language means that the language is not clear has little significance. On that theory, a majority of a divided court could substitute its views of what the law should be in lieu of legislative intent simply by concluding that its erroneous reading of a clearly written statute makes the statute "unclear.”

9 . The majority contends that the care Mrs. Carbajal provided is not like services typically rendered by a nurse as in Close. Supra, ¶¶ 20-21. Unlike our statute, the statute in Close limited compensable services to "surgical, medical and nursing services.” 693 A.2d at 731. Moreover, some of the services provided in Close were practical nursing duties, just like Mrs. Carbajal provided. Id. at 730-31. Contrary to the majority’s discussion, Mr. Carbajal’s treating physician said that the attendant care was not simply supervision, but required "skilled activity,” and while the attendant care needed at home was not necessarily one-on-one care by a healthcare provider, it could be done by family members only if they could do it. Supra, ¶¶ 26-27 & nn. 5-6. Training was required for moving Mr. Carbajal out of bed to get him to a bathroom without falling and hurting himself and for checking and adjusting his oxygen tanks in the middle of the night. Supra, ¶ 27.

10 . The majority minimizes this fact by contending that Mrs. Carbajal has time during the day when Mr. Carbajal is at the care center and there was no evidence she sought new work. No one asked Mrs. Carbajal whether she sought a different job at which she could work during the five to six hours Mr. Carbajal is at the care center and she is not seeking compensation for those hours.

11 . The majority attempts to avoid that result by contending that its conclusion here is limited by the facts in this case. However, the majority’s holding cannot be so easily limited; it holds that unless the care is truly medical in nature, all attendant care is noncompensable under the statute if provided by a spouse. Thus, employers and workers' compensation carriers would be free under that analysis to refuse compensation for any such attendant care even if they would have paid for it if provided by third parties.

12 . This is not to say or imply that the result of this Court would be different if the roles between husband and wife were reversed, but only to note that the error in holding that such attendant care is part of "marital duties” is made more obvious in traditional views if those roles were switched. One could presume, however, that this result would be different if a married couple entered into a premarital agreement about their duties in case of a compensable injury. Alternatively, Mrs. Carbajal could obtain a divorce and then agree to provide attendant care to Mr. Carbajal but only if compensated for by the workers’ compensation carrier.