Dunaj v. Harry Becker Co.

• Decision Date: 28 March 1974
• Docket Number: No. 1,Docket No. 16156,1
• Citation: 217 N.W.2d 397,52 Mich.App. 354
• Parties: Richard E. DUNAJ and Helen Dunaj, his wife, Plaintiffs- Appellees, and Cross-Appellants, v. HARRY BECKER COMPANY et al., Defendants-Appellants
• Court: Court of Appeal of Michigan — District of US

Page 397

217 N.W.2d 397

52 Mich.App. 354

Richard E. DUNAJ and Helen Dunaj, his wife, Plaintiffs- Appellees, and Cross-Appellants, v. HARRY BECKER COMPANY et al., Defendants-Appellants.

Docket No. 16156.

Court of Appeals of Michigan, Division No. 1.

March 28, 1974.

Released for Publication May 8, 1974.

Robert D. Thompson, Southfield, for defendants-appellants.

Sanford L. Steiner, Ripple & Chambers, P.C., Detroit, for plaintiffs-appellees.

Before LESINSKI, C.J., and BASHARA and VanVALKENBURG,* JJ.

VanVALKENBURG, Judge.

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 $60,606.00 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 M.C.L.A. § 412.4; M.S.A. § 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 3 additional 6 month * * * 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 N.W.2d 835 (1962), Springer v. Auto Air Industries, 370 Mich. 234, 121 N.W.2d 414 (1963).

In apparent reaction to these decisions, the legislature enacted 1963 P.A. 199, which replaced the above emphasized portion of M.C.L.A. § 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 changed was discussed in Jolliff v. American Advertising Distributors, Inc., 49 Mich.App. 1, 6 211 N.W.2d 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 P.A. 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...