CHARLES T REAGAN DECD V DETROIT BD OF EDUCATIONAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
CAROL A. MORRIS, Personal Representative of
the Estate of FLORENCE C. REAGAN, Deceased,
November 3, 2000
LC No. 97-000834
DETROIT BOARD OF EDUCATION,
December 26, 2000
Before: Kelly, P.J., and Whitbeck and Collins, JJ.
Plaintiff Carol Morris, personal representative of the estate of Florence Reagan, deceased,
appeals by leave granted the Worker's Compensation Appellate Commission's (WCAC) order
affirming the magistrate's denial of benefits for attendant care services. We reverse in part,
affirm in part, and remand.
I. Basic Facts And Procedural History
In 1979, the Worker's Compensation Appeal Board (WCAB) granted Charles Reagan an
open award of benefits for a disabling heart attack. This heart attack left Charles Reagan
bedridden most of the time. According to his physician, he could walk with a walker or use a
wheelchair and he sometimes needed no assistance with daily activities. His wife, Florence
Reagan, was a nursing assistant or nurse's aide and was able to care for him until he died in 1985.
In July 1985, Florence Reagan applied for nursing care benefits, reflecting care she provided for
her husband between 1979 and his death.
According to Florence Reagan, she woke her husband at 6:00 a.m., dressed him, and then
fed him. She prepared his lunch and stored it in a portable refrigerator located in his bedroom so
he could retrieve it during the day. Because her husband had a catheter and his bedroom was
equipped with a television, stereo, and telephone, all of which he could access from his bed, he
did not need to leave his bed frequently. Florence Reagan left for her job as a nurse's aide at
around 6:45 a.m. She then worked from 7:00 a.m. until 3:00 p.m., for four or five days a week.
While she was working, she called her husband every two hours to check on him and had his
sister stop in to see him. Florence Reagan typically returned home from work around 3:30 p.m.,
at which time she took care of household matters and attended her husband.
In 1988, in light of this evidence, the magistrate concluded that Florence Reagan was "on
call" full-time to provide care for her husband, except when she was at work. The magistrate
awarded nursing care benefits for about 120 hours a week. The WCAB reversed this award,
remanding the matter for additional testimony and a finding regarding the amount of time
Florence Reagan spent specifically providing nursing care. Because he did not require full-time,
around-the-clock assistance, according to the WCAB, Charles Reagan was entitled to nursing
care benefits only for the amount of time Florence Reagan actually performed those duties.
On remand, a new magistrate agreed with the earlier magistrate's conclusion that Florence
Reagan provided her husband full-time nursing care while she was not at work. The WCAC
again reversed, finding that the magistrate failed to follow its instructions to determine the
specific number of hours Florence Reagan spent attending her husband.
instructions to the magistrate on second remand to make findings concerning the actual number
of hours Florence Reagan spent caring for her husband, the magistrate simply returned the record
to the WCAC because Florence Reagan died before the parties could hold a hearing. The WCAC
ultimately denied all nursing benefits because Florence Reagan bore the burden of proving the
number of hours she attended her husband, but failed to do so.
II. Arguments On Appeal And Standard Of Review
Morris, Florence Reagan's personal representative, argues for her that the WCAC erred as
a matter of law when it limited nursing benefits to the actual number of hours she attended her
husband. Morris also argues that the WCAC erred in its 1990 order in limiting to the two years
preceding the petition in this case any award of nursing benefits it would have granted had it
received satisfactory factual findings. We review these questions of law de novo.1 The recent
Supreme Court decision in Mudel v Great Atlantic & Pacific Tea Co,2 which clarifies that the
courts apply an "any evidence" standard when reviewing a WCAC decision related to factual
matters, does not alter this standard of review for purely legal questions.3
III. Nursing Care Benefits
The parties ask us to determine whether the WCAC appropriately applied a "stop-watch"
method to calculate nursing benefits in this case. The WCAC would only award nursing benefits
for the precise time a spouse or family member spends changing bandages, feeding, bathing,
administering medication, or doing other tasks contemplated by MCL 418.315; MSA
17.237(315), at least in a case in which it concluded that the injured worker required less than
twenty-four hours of care each day. Thus, from the WCAC's perspective, it needed a precise
measurement of the number of hours each day Florence Reagan attended her husband pursuant to
Kushay v Sexton Dairy Co.4
Morris, on behalf of Florence Reagan, argues, however, that this actual care standard is an
inappropriate way to measure benefits. Rather, the amount of time compensable under MCL
418.315; MSA 17.237(315) includes the number of hours Florence Reagan was available to care
for her husband, even if she was not directly providing care at every moment. She points out that
in a commercial or professional setting, like a nursing home or a hospital, nurses are
compensated for the amount of time they are available, not for the specific tasks they perform or
the duration of those tasks.
As Florence Reagan did throughout the proceedings in the
administrative tribunal in this case, Morris relies on Brown v Eller Outdoor Advertising Co5 to
support this argument.
The Michigan Supreme Court first addressed nursing care benefits in Kushay, supra, in
which the claimant totally and permanently injured himself, thus being forced to spend about
ninety percent of his time in bed.6 Daisy Kushay, the claimant's wife, helped him with a variety
of daily tasks, including bathing, dressing, medication, using the bathroom, driving him to
appointments, and performing other personal care services, but the WCAB concluded that those
efforts were simply things that a "dutiful wife" would ordinarily do for her husband and denied
nursing benefits.7 Construing MCL 418.315; MSA 17.237(315), which allows a spouse to
recover the cost of "reasonable medical, surgical and hospital services and medicines or other
attendance or treatment" that an injured worker needs, the Kushay Court rejected the WCAB's
conclusion and stated:
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 the 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."8
While clearly defining an employer's obligation to pay for nursing or attendant care under MCL
418.315; MSA 17.237(315) in terms of the nature of the services at issue, the Kushay Court did
not attempt to determine how to measure those services.
In Brown, supra, the plaintiff 's injury prevented him from moving his body below his
neck, except for some "useless" movement in one arm.9 He required a great deal of attention and
personal care, which his wife provided.10 She eventually sought nursing care benefits and the
WCAB found that the plaintiff required full-time nursing and custodial care.11 The parties
disputed whether the plaintiff should receive benefits for full-time care from his wife who,
although "on call," performed tasks other than his direct nursing care.
Kushay,12 this Court reasoned:
[T]he 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.13
Although only mentioned in a footnote,14 this Court's decision in Brown followed precedent set
in an opinion released earlier that year, Filion v Art Himbault Trucking Co.15 Like Brown, Filion
endorsed compensation for on-call time.
In fact, the Court specifically rejected limiting
compensation to the time familial or spousal caregivers actually spend caring for the injured
In effect, Brown and Filion recognized that being available to give care, especially when
the need for care can arise suddenly and unpredictably, is compensable when it is necessary. The
Detroit Board of Education (the Board), however, implicitly contends that Brown conflicts with
Kushay and is, in any event, distinguishable on factual grounds. We cannot agree with either
First, because Kushay did not attempt to establish how to calculate attendant or nursing
care, whether that includes on-call time or not, there is no reasonable way to read it as conflicting
with Brown. Certainly, if the cases did conflict, Kushay would control.17 However, Brown
actually follows Kushay in that it looked to the nature of the services rendered, rather than the
family or spousal relationship between the injured worker and the caregiver, to determine if they
were compensable. Having reviewed the case law construing Kushay in the context of when
attendant care is compensable, we cannot find any opinions that hold that Kushay prohibits
compensation for necessary on-call time. The Board has not provided us with any authority
making that point. Although not explaining which method the magistrate used to calculate the
compensable hours, cases following Kushay that involve injured workers who required less than
literally constant care hint that compensation is available for this on-call time.18
As for the second component of the Board's argument, that Brown is factually
distinguishable, Brown established a legal principle that can be applied in every case, namely,
that on-call care is compensable under the statute. Surely we can see the possibility that, over
time or because of specific events like surgery, an injured worker may need more or less on-call
attendant care during certain times. Whether this care is compensable depends solely on whether
it was necessary. In other words, compensation does not depend on whether the care can be
categorized as "around-the clock" or part-time as long as it is necessary.
That the injured worker in Brown may have required more on-call care than Charles
Reagan is irrelevant to the WCAC's decision to refuse to compensate Florence Reagan for
necessary on-call care, no matter how much or how little of this on-call care she provided. This
was an error of law irrespective of any support in the record for the amount of time she spent
being on-call. The WCAC was not free to disregard this Court's ruling in Brown.19 The
unfortunate effect of this legal error is that it forced a series of remands in order to determine the
precise amount of actual caregiving so that the Board could avoid compensating Florence Reagan
for on-call time. As we noted, Florence Reagan died in the interim. The delay in this case
therefore ultimately denied Florence Reagan compensation during her lifetime.
Even if we were so inclined, we do not have the authority to quarrel with the WCAC's
determination that the magistrate lacked the necessary evidentiary support to conclude that
Charles Reagan required care twenty-four hours each day.20 Nevertheless, we are hard pressed to
explain the WCAC's decision to deny all attendant care benefits in this case even under its
erroneous conclusion that it needed a precise accounting of the actual time Florence Reagan
spent providing those services. Minimally, the WCAC should have awarded her compensation
for the approximately one hour each morning it found that she had spent dressing her husband
and preparing his meals.
On remand, the WCAC is still free to conclude that Charles Reagan only needed parttime care and, therefore, Florence Reagan was only entitled to compensation for the part-time
care she rendered, whether performing actual services or being on-call.21 With this freer view of
the evidence, we are hopeful that the record as it currently stands is sufficient to determine a
reasonable number of hours Florence Reagan took care of her husband based on her testimony
describing the many different tasks she performed for him.
IV. The Two-Year-Back Rule
Morris also argues that, contrary to the WCAB's 1990 opinion, the two-year-back rule22
does not apply to this case. At the time Charles Reagan suffered his injury, MCL 418.381(2);
MSA 17.237(381)(2) provided:
Whenever weekly payments are due an injured employee under this act,
such payments shall not be made for any period of time earlier than 2 years
immediately preceding the date on which the employee filed application for
hearing with the bureau.
In Franklin v Ford Motor Co,24 this Court held that the amendment applies retroactively and
"any compensation" includes medical care. Notably, the definition of "medical care" in the
Worker's Compensation Disability Act includes nursing care benefits.25 Therefore, the WCAB
properly decided that, pursuant to this rule, the claim for nursing care benefits for services
already rendered was limited to the two years preceding Florence Reagan's petition for those
Reversed in part, affirmed in part, and remanded for further proceedings consistent with
this opinion. We do not retain jurisdiction.
/s/ William C. Whitbeck
/s/ Jeffrey G. Collins
Kelly, J., I concur in the result only.
/s/ Michael J. Kelly
DiBenedetto v West Shore Hosp, 461 Mich 394, 401; 605 NW2d 300 (2000).
Mudel v Great Atlantic & Pacific Tea Co, 462 Mich 691; 614 NW2d 607 (2000).
See id. at 709.
Kushay v Sexton Dairy Co, 394 Mich 69; 228 NW2d 205 (1975).
Brown v Eller Outdoor Advertising Co, 111 Mich App 538; 314 NW2d 685 (1981).
Kushay, supra n 4 at 72.
Id. at 71, 73.
Id. at 74-75 (emphasis supplied).
Id. at 539.
Id. at 540.
Id. at 540-541.
Id. at 542.
Id. at 543.
Id. at 543, n 1.
Filion v Art Himbault Trucking Co, 103 Mich App 471; 302 NW2d 892 (1981).
Id. at 478-479.
See generally People v Mitchell, 428 Mich 364, 369; 408 NW2d 798 (1987).
For example, in Trejo v Michigan Sugar Co, 133 Mich App 753, 758-759; 350 NW2d 314
(1984), the injured worker required help going to the bathroom and moving around. The opinion
did not, however, suggest that he needed more intensive care from his wife, such as physical
therapy or being fed, leaving open the possibility that during some of the compensable time his
wife was simply available to respond to his needs as necessary.
Straman v Lewis, 220 Mich App 448, 451; 559 NW2d 405 (1996).
See Mudel, supra n 4.
Without intending to cross the boundary between questions of law and fact, we must note that
this case illustrates the difference between necessary care and available care. The record
suggests that Florence Reagan made a number of practical accommodations for her husband
because she had to work. For instance, she placed a small refrigerator near his bed so that, while
she was away from the house, he could eat the food she prepared for him. He also used a
catheter to avoid trips to the bathroom. Although apparently effective, this sort of ability to
accommodate an injured worker's disability when care is not available does not mean that care
was unnecessary. Proof of necessity, not availability, is the key for compensation under the
statute. MCL 418.315; MSA 17.237(315). We do not ask the WCAC to reconsider whether
Charles Reagan required care twenty-four hours a day. Nor do we attempt to resolve the parties'
competing views of Charles Reagan's health and capacity to care for himself. Rather, we make
this observation so that, in future cases, the WCAC can distinguish between injured workers who
can delay their need for care until the time when care is available and injured workers who
simply do not need as much care.
MCL 418.381(2); MSA 17.237(381)(2).
1980 PA 357, effective January 1, 1982, substituted "weekly payments" for "any
Franklin v Ford Motor Co, 197 Mich App 367, 370-371; 495 NW2d 802 (1992).
See Kosiel v Arrow Liquors Corp (On Remand), 211 Mich App 550, 555; 536 NW2d 567