Levin, J.
John Kushay became totally and permanently disabled as the result of a work-related injury. Workmen’s compensation benefits were paid by his employer, Sexton Dairy Company.
This appeal concerns Kushay’s claim that Sexton Dairy is liable for services rendered in the Kushay home by Kushay’s wife, Daisy.
The Workmen’s Compensation Appeal Board rejected the claim for funds to compensate Daisy Kushay on the ground that her services were those "any conscientious wife would give her husband”. The Court of Appeals denied leave to appeal.
We reverse and remand to the appeal board for determination of the amount payable for services rendered by Daisy Kushay.
The statute provides that an employer shall provide an employee injured in the course of his employment with "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”.
(Emphasis supplied.)
Sexton Dairy contends that the issue is factual, not legal: The appeal board’s determination that the services performed by Daisy Kushay were those a dutiful wife would perform for her husband is said to be a factual determination, dispositive of the issue and binding on this Court in the absence of fraud.
There are factual questions which, on remand, it will be the function of the appeal board to resolve. The construction to be given the statute and
whether particular services fall within that construction are, however, questions properly reviewable by this Court.
I
In January, 1961, while employed by the Sexton Dairy Co., John Kushay injured his back lifting a 130-pound can of cream. He was operated on in February and again in June of that year. The appeal board found that Kushay became totally and permanently disabled
due to the industrial loss of use of both legs following the June surgery. The nature of Kushay’s disability is pain in the lower back and legs caused by the formation of scar tissue around his spinal cord.
Kushay spends 90% of his time in bed. He moves about in a wheel chair or with the aid of two canes. He claims that he suffers "intense, unremitting” pain, a "burning sensation” and "numbness” in his legs, caused by the scar tissue pulling and squeezing the spinal nerves radiating into his legs, and that walking with his canes requires tremendous effort.
The appeal board has in other cases made awards for care rendered by a member of the family as "other attendance” within the meaning of the statute.
In
Dunaj v Harry Becker Co,
1972 WCABO 2781;
aff'd
52 Mich App 354; 217 NW2d 397 (1974), the claimant lost the industrial use of his legs due to a back injury. He suffered periods of severe pain and spent much time in bed. His wife bathed him, changed his clothes, administered medication and
helped him to the bathroom; compensation was awarded for these services.
Daisy Kushay bathes her disabled husband, helps him dress, gives him medication, serves meals in bed, helps him to the bathroom, occasionally gives him enemas, clips his toenails and drives him to appointments.
In
Anttonen v Cleveland Cliffs Iron Co,
1962 WCABO 152, payment was awarded for services rendered by the wife of a worker who had lost a leg and the industrial use of an arm. She helped him dress, bathe, assisted him in the bathroom and in attaching and removing his artificial leg.
Similarly, the claimant in
Ertel v Chrysler Corp,
1972 WCABO 1662, lost the industrial use of his right arm and leg due to pain associated with a spinal injury. His wife helped him dress and bathe, massaged his back and put him in traction; payment was awarded for these services.
II
The irreconcilability of the results in these cases with the result in this case may be attributable to the standard — whether the services are "beyond ordinary wifely duties”
or, conversely, those "which any conscientious wife would give her husband”
— employed by the appeal board.
The language of the statute, "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.
Ordinary household tasks are not within the statutory intendment. House cleaning, preparation of meals and washing and mending of clothes, services required for the maintenance of persons who are not disabled, are beyond the scope of th,e obligation imposed on the employer. 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.
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”.
Ill
Professor Larson writes that the early case law denied payment for services performed by a claimant’s wife on the ground that she "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 these services.”
The claimant in
AG Crunkleton Electric Co, Inc v Barkdoll, 227
Md 364, 371; 177 A2d 252, 256 (1962), suffered the amputation of both arms due to extensive burns. The statute provided that " * * * the employer shall promptly provide for an injured employee such medical, surgical or other attendance or treatment, nurse and hospital services, medicines, crutches, apparatus, artificial hands, arms, feet and legs as may be required by the Commission”. The highest court of Maryland, without discussing the nature of the services performed by the claimant’s wife, affirmed an award:
"The services rendered by the wife were not minor in character, or of such a nature so as to be classified as ordinary household duties.
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Levin, J.
John Kushay became totally and permanently disabled as the result of a work-related injury. Workmen’s compensation benefits were paid by his employer, Sexton Dairy Company.
This appeal concerns Kushay’s claim that Sexton Dairy is liable for services rendered in the Kushay home by Kushay’s wife, Daisy.
The Workmen’s Compensation Appeal Board rejected the claim for funds to compensate Daisy Kushay on the ground that her services were those "any conscientious wife would give her husband”. The Court of Appeals denied leave to appeal.
We reverse and remand to the appeal board for determination of the amount payable for services rendered by Daisy Kushay.
The statute provides that an employer shall provide an employee injured in the course of his employment with "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”.
(Emphasis supplied.)
Sexton Dairy contends that the issue is factual, not legal: The appeal board’s determination that the services performed by Daisy Kushay were those a dutiful wife would perform for her husband is said to be a factual determination, dispositive of the issue and binding on this Court in the absence of fraud.
There are factual questions which, on remand, it will be the function of the appeal board to resolve. The construction to be given the statute and
whether particular services fall within that construction are, however, questions properly reviewable by this Court.
I
In January, 1961, while employed by the Sexton Dairy Co., John Kushay injured his back lifting a 130-pound can of cream. He was operated on in February and again in June of that year. The appeal board found that Kushay became totally and permanently disabled
due to the industrial loss of use of both legs following the June surgery. The nature of Kushay’s disability is pain in the lower back and legs caused by the formation of scar tissue around his spinal cord.
Kushay spends 90% of his time in bed. He moves about in a wheel chair or with the aid of two canes. He claims that he suffers "intense, unremitting” pain, a "burning sensation” and "numbness” in his legs, caused by the scar tissue pulling and squeezing the spinal nerves radiating into his legs, and that walking with his canes requires tremendous effort.
The appeal board has in other cases made awards for care rendered by a member of the family as "other attendance” within the meaning of the statute.
In
Dunaj v Harry Becker Co,
1972 WCABO 2781;
aff'd
52 Mich App 354; 217 NW2d 397 (1974), the claimant lost the industrial use of his legs due to a back injury. He suffered periods of severe pain and spent much time in bed. His wife bathed him, changed his clothes, administered medication and
helped him to the bathroom; compensation was awarded for these services.
Daisy Kushay bathes her disabled husband, helps him dress, gives him medication, serves meals in bed, helps him to the bathroom, occasionally gives him enemas, clips his toenails and drives him to appointments.
In
Anttonen v Cleveland Cliffs Iron Co,
1962 WCABO 152, payment was awarded for services rendered by the wife of a worker who had lost a leg and the industrial use of an arm. She helped him dress, bathe, assisted him in the bathroom and in attaching and removing his artificial leg.
Similarly, the claimant in
Ertel v Chrysler Corp,
1972 WCABO 1662, lost the industrial use of his right arm and leg due to pain associated with a spinal injury. His wife helped him dress and bathe, massaged his back and put him in traction; payment was awarded for these services.
II
The irreconcilability of the results in these cases with the result in this case may be attributable to the standard — whether the services are "beyond ordinary wifely duties”
or, conversely, those "which any conscientious wife would give her husband”
— employed by the appeal board.
The language of the statute, "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.
Ordinary household tasks are not within the statutory intendment. House cleaning, preparation of meals and washing and mending of clothes, services required for the maintenance of persons who are not disabled, are beyond the scope of th,e obligation imposed on the employer. 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.
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”.
Ill
Professor Larson writes that the early case law denied payment for services performed by a claimant’s wife on the ground that she "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 these services.”
The claimant in
AG Crunkleton Electric Co, Inc v Barkdoll, 227
Md 364, 371; 177 A2d 252, 256 (1962), suffered the amputation of both arms due to extensive burns. The statute provided that " * * * the employer shall promptly provide for an injured employee such medical, surgical or other attendance or treatment, nurse and hospital services, medicines, crutches, apparatus, artificial hands, arms, feet and legs as may be required by the Commission”. The highest court of Maryland, without discussing the nature of the services performed by the claimant’s wife, affirmed an award:
"The services rendered by the wife were not minor in character, or of such a nature so as to be classified as ordinary household duties. We think it is clear that the duties performed by the wife in this case were extraordinary, unusual, and clearly above and beyond the usual call of any marital obligation.”
In an earlier case,
Daugherty v City of Monett,
238 Mo App 924, 938; 192 SW2d 51, 56 (1946), the wife of a worker paralyzed from his waist down was awarded compensation for services "in addition to her ordinary household duties” under a statute requiring the employer to furnish "such medical, surgical, and hospital treatment, including nursing”, as may reasonably be required for the first 90 days, and "such additional similar treatment as the commission by special order may determine to be necessary”.
In
Western Alliance Insurance Co v Tubbs,
400 SW2d 850 (Tex Civ App, 1965), the services performed by the claimant’s wife "consisted of feeding, bathing, shaving and turning claimant, taking him to the doctor and generally 'taking care of him in his home while he was an invalid”. The Court held that she was properly awarded compensation for rendering services which the employer had a statutory duty to provide.
IV
Sexton Dairy raises in this Court issues which it did not present to the referee, the appeal board or the Court of Appeals.
Kushay counters Sexton Dairy’s arguments both on the merits (see fn 11) and on the ground that issues are waived if not timely raised.
We conclude that Sexton Dairy failed properly to preserve these issues
and that there is, therefore, no need to address the merits of those issues. This Court should whenever possible have the benefit of the views of the appeal board before opting for one or another interpretation of this complex and frequently amended statute.
On remand, the appeal board may in the exercise of its discretion permit Sexton Dairy to raise these issues.
Remanded to the Workmen’s Compensation Appeal Board for further proceedings. The Appeal Board shall determine the amount payable for services rendered by Daisy Kushay. Costs to appellant.
T. G. Kavanagh, C. J., and Swainson, Williams, and J. W. Fitzgerald, JJ., concurred with Levin, J.
M. S. Coleman, J., concurred in the result.
The late Justice T. M. Kavanagh took no part in the decision of this case.