Dunaj v. Harry Becker Co.

52 Mich. App. 354 (1974) 217 N.W.2d 397

DUNAJ
v.
HARRY BECKER COMPANY

Docket No. 16156.

Michigan Court of Appeals.

Decided March 28, 1974.

Ripple & Chambers, P.C. (by Sanford L. Steiner), for plaintiff.

Robert D. Thompson, for defendants.

Before: LESINSKI, C.J., and BASHARA and VAN VALKENBURG,^[*] JJ.

VAN VALKENBURG, J.

On June 29, 1964, plaintiff Richard Dunaj sustained a work-related back injury. While he was able to return to work for various periods of time since then, this back injury has resulted in a number of operations, including hospital stays, and substantial periods of time when he was bedridden at home. Plaintiff has received workmen's compensation for all periods of disability. In 1970 plaintiff and his wife sought payments for nursing services rendered by plaintiff Helen Dunaj to her husband for various periods between June 1964 to January 1970. The referee ordered payment of $60,606 for these services. On appeal to the Workmen's Compensation Appeal Board, the board found that such services were compensable, but limited the period of recovery from September 1965, and the amount of recovery to a single eight-hour shift per day during the periods the services were rendered at the rate of pay of a nurse's aide.^[1] From that amended award defendants appeal on leave granted.

The appeal board in reaching its conclusion relied upon the language of MCLA 412.4; MSA 17.154 as it read prior to its 1963 amendment, which provided in pertinent part:

"The employer shall furnish, or cause to be furnished, reasonable medical, surgical, and hospital services and medicines when they are needed, for the first 6 months after the injury and thereafter for not more than an additional 6 months in the discretion of the commission, upon written request of the employe to the commission and after the employer or his insurer has been given an opportunity to file objections thereto and to be heard thereon. * * * If the employer shall fail, neglect or refuse so to do such employe shall be reimbursed for the reasonable expense incurred by or on his behalf in providing the same, by an award of the commission." (Emphasis added.)

The Supreme Court interpreted this language to mean that claimants were entitled to receive reimbursement for medical services notwithstanding the fact that they had not paid for them. See McDaniel v Campbell, 367 Mich. 356; 116 NW2d 835 (1962); Springer v Auto Air Industries, 370 Mich. 234; 121 NW2d 414 (1963).

In apparent reaction to these decisions, the Legislature enacted 1963 PA 199, which replaced the above emphasized portion of MCLA 412.4 supra, with the following language:

"* * * If the employer shall fail, neglect or refuse so to do, such employee shall be reimbursed for the reasonable expense paid by him, or payment may be made in behalf of such employee to persons to whom such unpaid expenses may be owing, by an award of the commission."^[2]

The thrust and effect of this language change was discussed in Jolliff v American Advertising Distributors Inc, 49 Mich. App. 1, 6; 211 NW2d 260, 263 (1973), wherein this Court held:

"In view of this amendment, it would appear that McDaniel no longer represents the law of the state. The board may only order reimbursement of medical expenses if they were actually incurred by the employee; or, if they were incurred by another on his behalf, then the board may only order reimbursement if the amount of the expenses are ``owing' to such third party. If the party who incurred such expenses retains any sort of contingent right to be reimbursed by the employee, then the board may order reimbursement."

Since all the services considered herein were rendered after the effective date of 1963 PA 199, and since the services were clearly not medical expenses which had been paid by claimant, the question thus becomes whether medical services rendered by claimant's wife are unpaid medical services within the meaning of the statute.

There can be little question that had these services been rendered by someone other than claimant's spouse they would have been compensable under the statute. Defendant argues however that because these services were nothing more than those which a loving wife would render to her husband, they were not "owing", since claimant's wife could not maintain an action against her husband to recover for these services. There is ample Michigan authority for the proposition that a husband is entitled to the services and society of his wife, and that, to the extent that such services are what a husband has a right to expect of his wife, a wife cannot maintain an action against her husband to enforce payment for those services.^[3] Those cases are not, however, dispositive of the question at hand. Given the remedial nature of the Workmen's Compensation Act, a narrow application of such authority is inappropriate. While the appellate courts of this state have not spoken to this question in a published opinion, the general rule prevailing in other jurisdictions is well stated in 2 Larson's Workmen's Compensation Law, § 61.13, pp 88.253-88.254.

"The commonest controversy is the question whether practical nursing services performed by the claimant's own wife may be made the subject of a claim for nursing expenses. The earlier cases denied the allowance, on the ground that the wife did no more than she was bound to do as an affectionate spouse. Later cases, however, have permitted the charge, on the reasoning that the employer, by statute, has the affirmative duty of furnishing this kind of nursing service. If he has not done so, and if the wife then takes over these duties in addition to her regular household work and does exactly what a hired nurse would have had to do, the charge is proper." (Footnotes omitted.)^[4]

While it is clear that the Legislature by its 1963 amendment intended to eliminate the possibility of a windfall by a claimant with respect to services for which he could not be held legally liable, we do not believe that the Legislature intended that employer and its insurer should receive a windfall by reason of the fact that claimant's wife has performed services which should have been provided by said employer. We therefore hold that medical services provided by a claimant's wife are compensable to the same extent as they would be if the services had been rendered by someone other than the wife.

The remaining issues raised in the appeal and cross-appeal are either totally lacking in merit or questions of facts which were resolved by the appeal board and are not subject to review, since they were supported by competent evidence and were not the product of fraud.

Affirmed. No costs, neither party having prevailed in full.

All concurred.

NOTES

[*] Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

[1] The referee in arriving at the $60,000 figure had allowed payment for two eight-hour shifts per day during certain periods and payment at a licensed practical nurse's pay scale during certain periods. Although the board did not compute what the amended award would be, it appears that the amended award would be somewhat in excess of $14,000.

[2] MCLA 412.4, supra, was repealed by 1969 PA 317 and was replaced by § 315 of said act, the same being MCLA 418.315; MSA 17.237(315). The language of the new act is identical, insofar as we are concerned here, with that of the 1963 amendment.

[3] Root v Root, 164 Mich. 638; 130 N.W. 194 (1911); Gregory v Oakland Motor Car Co, 181 Mich. 101; 147 N.W. 614 (1914); Sorensen v Sorensen, 211 Mich. 429; 179 N.W. 256 (1920); Lyzen v Lyzen, 221 Mich. 302; 191 N.W. 6 (1922); Detroit & Security Trust Co v Gitre, 254 Mich. 66; 235 N.W. 884 (1931); Weil v Longyear, 263 Mich. 22; 248 N.W. 536 (1933); Anderson v Lavelle, 285 Mich. 194; 280 N.W. 729 (1938); Stuive v Pere Marquette R Co, 311 Mich. 143; 18 NW2d 404 (1945).

[4] See Bushnell v City of Duluth, 241 Minn 189; 62 NW2d 813 (1954); Oolite Rock Co v Deese, 134 So 2d 241 (Fla, 1961); California Casualty Indemnity Exchange v Industrial Accident Commission, 84 Cal App 2d 417; 190 P2d 990 (1948); A G Crunkleton Electric Co v Barkdoll, 227 Md 364; 177 A2d 252 (1962); Collins v Reed-Harlin Grocery Co, 230 S.W.2d 880 (Mo App, 1950); Berkowitz v Highmount Hotel, 281 App Div 1000; 120 NYS2d 600 (1953).