*1 warranty implied claim for D. the Association’s privity. lack of therefore vacate We argues require 18 Reliance that failure opinion appeals, the court of of reverse privity implied warranty actions will ex- court, superior and remand judgment of the pose expanded residential homebuilders to proceedings superior to the court for further liability disrupt important an sector of opinion.6 consistent with economy. the Arizona But homebuilders already directly public do not to the sell MeGREGOR, RUTH V. CONCURRING: are liable for construction. As not- defective BERCH, Justice, Chief REBECCA WHITE above, long directly ed builders have been Justice, MICHAEL D. RYAN and Vice Chief liable to those contract for with whom BALES, Justices. W. SCOTT implied warranty good breach of the of work- Therefore, manship. developer-vendor typically

sued defective construction will builder; indemnity seek from the such a may assign defendant also choose to against plaintiff. claim the builder to the See Gittlen, v. Webb (noting unliquidated P.3d 190 P.3d 737 injury generally non-personal claims are as- Petitioner, CARBAJAL, today Sabino signable). Our decision thus does not impose liability none exist- on builders where past.4 ined The INDUSTRIAL COMMISSION argues 19 Reliance also that failure ARIZONA, Respondent, OF require privity salutary attempts chill developers and to allocate between builders Employer, Phelps Dodge, Respondent responsibility damages arising for contract nothing in out of construction defects. But America, North Gabb Robbins opinion today prevents discourages our Respondent Carrier. agreements; only that the As- such we hold No. 1 CA-IC 07-0054. may bring directly against Reli- sociation suit rely agree- may upon ance. an Reliance Arizona, Appeals of Court Developer respecting ment it has with the 1, Department E. Division responsibility for defec- allocation eventual obligations escape tive construction to its Aug. implied warranty.5

the Association on the III. reasons, foregoing For the we hold superior dismissing that the court erred developer-vendor recognize ranty good workmanship). disapprove We 5. We Center, however, Hayden satisfy judgment financially extent Business unable to premise may warranty, Richards implied that it rests on the builder breach of the exception applies only to homebuilders who are monetary responsibility, left with the entire be notwithstanding any also vendors. Id. 678 P.2d 427. agreements. But allocation circumstances, remedy- the costs of under such protec- provides 4. Arizona law also builders with appropriately fall construction most defective claiming against actions those construc- tions builder, innocent end rather than on on the §§ 12-1361 to -1366 tion defects. See A.R.S. users. (requiring putative plaintiffs builders no- repair opportunity con- tice defective attorneys’ pursuant parties fees Both seek struction); eight-year (imposing § id. 12-552 (A). We decline to award 12-341.01 completion A.R.S. from substantial statute of limitations party has successful because the eventual dwelling, regardless defective fees of whether yet period). been determined. construction is discovered

OPINION

OROZCO, Judge. special 1 This is a action of an review (ICA) Industrial Commission of Arizona deci- (Claimant) denying Carbajal’s sion Sabino request seeking compensation from Gabb (Carrier) Robbins North America for care (Wife) Celia times in no skilled attendant care is following to Claimant. For the rea- sons, affirm. AND

FACTS PROCEDURAL HISTORY injuries Claimant sustained severe spinal his head and cord in an industrial accident on November 1999. As result accident, right hemipare- Claimant has sis,1 problems cogni- aswell related to his ability. tive Claimant is able to ambulate with a wheelchair or a walker. Claimant’s injury was found to be and Car- accepted rier his claim for benefits. monthly 3 In addition to his loss of earn- (LEC) entitlement, ing capacity Carrier vided Claimant with a wheelchair accessible special van. Carrier also made modifications home, adding Claimant’s which included tile to the floor making of the house and bathroom handicap and shower area accessi- ble. The specifically designed bathroom was independently. so that Claimant could use it ¶ Additionally, provides Carrier Claimant days with attendant care services seven eight for day. week to ten hours each Mon- day through Friday, an attendant arrives at Law Office of By Rico, Aida Rico Aida J. bathe, dress, Claimant’s home at 6:00 a.m. to Phoenix, Attorneys Employee. for Petitioner perform simple physical exercises with prepares Claimant. Wife Claimant’s break- Laura L. McGrory, Counsel, Chief fast and administers his medication. At 8 Industrial Arizona, Phoenix, Commission of a.m. the attendant takes Claimant to the Attorneys Respondent. day adult care rehabilitation center. In the Jardine Baker Hickman & Houston PLLC afternoon, picked up Claimant is from the By Houston, Phoenix, Scott H. Attorneys for dropped center and off at his home at 3:30 Respondents Employer p.m.2 and Carrier. p.m., At 6:30 another attendant ar- "Hemiparesis” paralysis Therefore, affecting only day. one to seven hours each if Wife body. RightHealth, http://righthealth. work, side of the certainly wanted to there was time in the com/Health/hemiparesis/-oddefinition_wiki_ Wife, however, day for her to do so. has not (last 28, 2008). Hemiparesis-s July visited sought employment injury since the and there employ- are doubts whether she could secure dissent, arguing 2. The infra given Consequent- ment her own health issues. compensable, makes much ly, undisputed while it is Wife did not work of the fact that Wife "had to leave her full-time accident, following outside the home Claimant's However, work to care for her husband.” it was facility that Claimant was at the six night. times a is often to three his needs. which two and assists Claimant with

rives range that, injury, performing of motion exercises since Claimant’s After Wife testified Claimant, prepares the attendant Claim- caring she has had no life and likened approximately 9:30 and leaves at having ant bed Claimant to a child. p.m. subsequent hearing At a held on No- *3 ¶ Saturdays, at 5 On an attendant arrives 22, 2006, treating physi- Claimant’s vember stays home at 7:00 a.m. and Claimant’s that, Porter, although cian, Dr. testified left, attendant has couple of hours. After the and must be Claimant “cannot live alone” usually takes Claimant out visit with Wife part,” he does not “supervised for the most to eat. An family or the will out two you that require times] “skilled at all [care stays p.m. 6:30 with attendant returns at tracheostomy get in has a can someone who p.m. approximately 9:30 On Claimant until things feedings or like that.” tube need[s] a.m. Sundays, an arrives at 7:00 attendant a fami- example, Dr. Porter testified that For to church. Claimant is re- take Claimant help his needs could ly member familiar with p.m. at 1:00 An attend- turned to his home or set get up and use the bathroom Claimant nor- p.m. returns at 6:30 for Claimant’s ant no up his meals the hours which evening mal routine. provided to Claimant. attendant care was to the services 6 addition assistance, explained, Dr. Porter did This Claimant, registered nurse daily to visits provider require a licensed health weekly up to set his Claimant on a basis with caregiver, “just an attendant of sorts.” skilled medications, pressure, and take his blood (Boggs), the Registered Boggs Nurse nurse is also temperature. his check at- manager developed Claimant’s case any significant Claimant should available to Porter, plan Dr. also testi- tendant care accompany him health issues arise will hearing. Boggs at the fied November emergency room if need be. change testified she would .Claim- April Claimant filed a On plan. Boggs opined that ant’s attendant care investigation, pursuant to Arizona request for things capable doing some Claimant was (A.R.S.) 23-1061(J) Statutes section Revised himself, but Claimant believes alleging that Carrier had re- (Supp.2007), these tasks for attendants should do for the attendant compensate Wife fused instance, being paid. For since sought provided. Claimant retroac- care she Claimant has used the Boggs testified that rendered compensation for the care tive at at home and bathroom without assistance attendant during those hours when no Wife She testified that day care center. also hearing held on provided. At a care was up as much not need to Claimant would argued that September Claimant bed, placed a urinal at he used only fair since Claim- compensating Wife previously done Wife went as he had when day, requires attendant care hours ant Boggs couple of testi- Mexico for a weeks. days testified that on a week. Wife seven patients that are of her other fied that none weekdays, p.m. Claimant 3:30 when between require “24- similarly to Claimant situated day care center and 6:30 from the returns per day care.” hour attendant arrives, she p.m. the second attendant when considering be- After all the evidence chair, reclining administers his him in his sits Judge him, the Administrative Law fore medication, him dinner. Occasion- and feeds (ALJ) not entitled to found that Wife or urinate on ally, Claimant defecate will care she compensation for the rehabilitation center Wife himself at request for Claimant’s and denied Claimant clothing and clean him change “the ALJ reasoned that investigation. The home in the afternoon. he returns when type of the is not care rendered that, [Wife] the second at- testified after Wife also attendant, but necessitates a trained monitors which night, for the she tendant leaves day-to-day closely akin to the rather is more sleeping and he is

Claimant’s while bathroom, spouse in accord with assumed he has to use assists so, record. are unclear from this why she is able to do reason and whether no more than he [spouse] did ground ALJ marriage commitment.” The sum- affectionate bound to do as an or she was marily affirmed his on administrative award & family.” 5 Arthur Larson review, brought special member and Claimant Larson, Compen Larson’s Workers’ Lex K. action. 94.03(4)(b) Many juris Law sation jurisdiction pursuant to 11 This court has per abandoned view dictions have 12-120.21(A)(2) (2003), §§ A.R.S. spouse on the compensation to a mitted (1995), of Procedure for and Arizona Rules ground “that Special Actions 10. con extraordinary nature and not those relationship.” marital templated the usual DISCUSSION Barkdoll, 227 Elec. Co. v. Crunkleton A.G. ¶ Although is owed to deference see, (1962); e.g., A.2d Md. *4 findings appeal, on PFS v. the ALJ’s factual Deese, 241, 243- 134 So.2d Oolite Rock Co. v. Comm’n, 274, 277, 191 Ariz. 955 P.2d Indus. (Fla.1961). courts have considered 44 Those 30, (App.1997), questions requiring the 33 determining a number of factors whether law, of interpretation of a statute are issues including: spousal care is City de novo. Schwarz v. which we review per typically of the services those whether Glendale, 508, 510, 167, 190 Ariz. 950 P.2d practitioners; by licensed health formed (App.1997). considering the facts 169 “When performed under whether case, been of our of this we have mindful direction; and the claimant medical whether duty liberally construe the Act to effect its care. See Truck needs continuous Warren having industry bear its share of purpose of Chandler, 1108, 221 Va. 277 S.E.2d ing Co. v. injury doing the burden of human as a cost of (1981); 488, Superior v. 493 Close Excavat But, a construction is not business. ‘liberal Co., 318, 729, 166 693 A.2d 731 Vt. interpreta synonymous generous a ¶ illustrate the framework 15 Two eases ” Comm’n, tion.’ Putz v. Indus. 203 Ariz. employing approach courts under which ¶ 146, 150-51, 24, 979, 983-84 analyze spousal of care. In Warren the issue (App.2002)(quoting Nicholson Indus. injuries Trucking, suffered the claimant Comm’n, an industrial head and neck as a result of his (1953)). at 489. After the acci- accident. 277 S.E.2d dent, dizzy spells ¶ had a series of the claimant compensation 13 Our stat out, him frequently blacked forced that, and which provides “upon to the em ute notice care. Id. at to remain home under his wife’s ployer, every injured employee shall receive requested compensa- medical, 490-91. The claimant surgical hospital and benefits oth treatment, care medicine, tion for the attendant nursing, surgical sup er wife, “bathing, consisted of by his which apparatus, ... rea plies, crutches and other feeding, walking, help shaving, assistance sonably during period ... of braces, falling, driving 23-1062(A) (1995). upon aid and disability.” § In with A.R.S. administering Id. at routine medication.” impression, of first are asked to this case we Court, Supreme Virginia provided by spouse a determine whether award, reversing held injured claimant in the marital home to an scope beyond “not such services were can be considered “other treatment” under 23-1062(A). Nor duties.” Id. at 494. normal household § in other circum A.R.S. While usually type “of the ren- the services might compelled to hold other stances we only by attendants.” Id. that, dered trained wise, conclude under the facts of this we case, by not fall the care rendered Wife did ¶ Close, a the claimant sustained contemplate the ambit of medical care within injury in an industrial accident. severe head 23-1062(A). § ed A.R.S. required 24- The claimant 693 A.2d at 730. acci- as a result of the initially hour attendant care reluctant em- Courts were seizures, dent, subject dis- left compensating brace the idea of orientation, memoiy Id. The practitioner for loss. not a licensed health-care care to him provided full-time injured claimant “on the claimant’s wife to an at their home. Id. The of the wife’s duties were statute to cover treatment benefits assigned physicians to her the claimant’s type and not “medical” services which would administering monitoring included normally spouse during be rendered medications, changing the doses of his marriage. medication, maintaining log of the claim- dissent, argues further infra behaviors, assisting ant’s the claimant rely are not free to rules sought seizures. Id. The claimant statute, statutory interpretation like when a for the care rendered 23-1062(A), § A.R.S. is “clear on its face.” wife. Id. The Supreme Vermont Court held However, language of we do not believe the compensable. the wife’s services were 23-1062(A) unambig- § A.R.S. is as clear and particular significance Id. at Of therefore, suggests, uous as the dissent physi- court was the fact that the claimant’s appropriate apply principle find it regarded performed by cians the duties ejusdem generis to this The ambi- statute. typically wife as those which would be ren- guity phrase punctuated by of the the use dered a nurse. Id. at 731-32. must, therefore, “other,” adjective, given activity, the claimant’s seizure he re- preceding be read in relation to the it. words quired day. attendant care hours a Id. at 731; Poole, Kenbridge see also Constr. Co. v. support interpretation find for our We Va.App. 486 S.E.2d Hughes of A.R.S. v. Indus- *5 (finding provided by “extensive” services the Commission, trial claimant’s wife re- when she (App.1996). Hughes, In court held significant training ceived in medical order to encompass that treatment” “other did care for him provided and the care of the was purposes child care services for of benefits type usually performed by attendants, skilled 23-1062(A). § A.R.S. 188 Ariz. at under monitoring which included the claimant’s 153-54, 933 P.2d at 1221-22. The claimant pressure, administering heart rate and blood argued reasonably that “child care re- [was] suppositories enemas, monitoring quired treatment it ne- [was] other because medications). by necessary to treat her in- cessitated dissent, infra maintains that injury.” at 1221. dustrial Id. at 23-1062(A) misinterpret § we A.R.S. principle ejusdem generis Applying the of interpret “other treatment” to mean “oth- 23-1062(A), § A.R.S. this court concluded treatment,” presumably er [medical] which that the statute did not extend child performed the by cover sendees type not of the same or class because was reading Wife. The dissent calls our specifically as the enumerated services. However, “superfluous.” statute one of the Hughes, 188 Ariz. at 933 P.2d at 1222. statutory interpretation cardinal pro- rules of that child care a The court reasoned general phrase vides that “when word generally “not considered medical service specifics, general a list of the follows word or added.) (Emphasis Id. treatment.” phrase interpreted only be to include ¶20 Likewise, by the services rendered type items of the same as those listed.” generally in this case are not considered ed.2004) Wife (8th (defin- Dictionary Black’s Law Contrary the medical treatment. dissent’s ejusdem principle generis). of Section ¶ 51, assertion, provided by the services “upon states that notice to the infra type of ser- in this case not the Wife employer, every injured employee shall re- nurse, by a typically rendered as medical, vices surgical hospital ceive benefits Close, physician In the concluded treatment, medicine, Close. nursing, surgi- or other person “that if one to be attend- supplies, apparatus, cal and other crutches ance, person capable pro- that should be reasonably required during ... peri- ... 23-1062(A) (em- viding nursing care.” 693 A.2d at disability.” skilled od of A.R.S. added). case, no such conclu- phasis In this there was light ejus- In of the rule of fact, physician. generis, preceding dem “other sion Claimant’s words stated, treatment,” “medical, only required “an surgical hospital,” previously Claimant sorts,” capable suggest legislature not someone intended attendant of care, providing nursing dissent, during Finally, contrary skilled infra ¶¶ 52-53, provid- times which no attendant care require Claimant does not continu- ed. The services Wife more ous 24-hour skilled attendant care. Dr. closely ordinary resemble the although Porter testified Claimant need- vided the claimant’s wife in supervised part, Warren for the he ed most did Trucking than do the extensive services not need constant “skilled” care. Dr. Porter provided Here, in Close and Poole. opined Wife that much of the care prepared meals, Claimant, Claimant’s cleaned him if beyond the attendant care services dirty, family received, he was him to family drove visit with he could be rendered weekends, using assisted him in provider health member and night, bathroom at oxygen and monitored his caregiver, “just skilled an attendant of sorts.” asleep. while he As Warren Truck- testimony Dr. Porter’s was consistent with ing, the services to Claimant were previous reports. report, medical In one type typically not of the performed only by “capable Dr. Porter stated that Claimant was trained attendants. living independently.” report, In another suggested Dr. Porter that there no need ¶21 Furthermore, the ALJ determined for skilled care the hours in no none of the care rendered toWife provided: attendant care was Claimant type was “of the which necessi- I patient do not see where the would need attendant,” tates a trained nor under the 6:30, through as far as the 3:30 this is [sic] direction or control of physicians. Claimant’s my understanding when he would be The extent of training required3 Wife watching spending television or time with was limited to instruction on operate how to family including ... his his wife and would Claimant’s machine and did not rise be fixed dinner. I do not see skilled significant the level of the training re- actually there, perform again need to but spouses ceived in Close and Poole. perform is not able to [Wife] someone Poole, example, For the claimant frac- *6 family in the would. tured his skull an industrial accident Furthermore, Boggs, developed who Claim- and, result, a as cognitive suffered from plan Porter, ant’s attendant care Dr. with damage. brain 486 S.E.2d at 568. His testified plan the attendant care caretaker assigned wife was a number of “working well” and did not need to be modi- tasks, all under the direction and control of fied. She also testified that Claimant could physicians. carry claimant’s Id. To out own, do a lot on his but chose to allow others regularly, these tasks the claimant’s wife they being paid. to do it for him since were was “trained to sup- administer enemas and Boggs that, compared further testified to positories, take samples, stool take blood similarly other individuals situated to Claim- pressure readings, and monitor heart rates.” ant, Claimant more receives assistance from Id. She cardiopulmonary also received re- demanding Wife because “he is of her” and (CPR) training. suscitation Id. Additional- very “is a difficult man demands that [who] ly, the wife remained in close contact with he be waited on.” physicians, the claimant’s monitored his medications, performed physical therapy view, We do share the dissent’s ¶55, with him. Id. at 568-69. implications holding that our infra dissent, ¶¶ similarly contends that it is there are situated individuals infra "undisputed” and, that Wife was trained to move family whose members take care of them injuring Claimant out of bed without him. turn, How- compensated by are the insurance carrier. ever, Wife never testified to such. Dr. Porter only compensated agen- But because no testified that he "assumed” that she had received cy caring injured spouses. is involved in for their training, but was not certain. "undisputed” So while is it the carrier pay family agency would involved, a member if no is carrier, argued by 4. That an insurance as required, the insurer is not as in this dissent, pay family members infra case, pay family to a member care for an injured person other cases to care for an if no injured spouse spouse already receiving if that is agency was involved to render attendant care is significant a amount of attendant care. Boggs irrelevant in the case at hand. testified himself, compensation sys- waking up in the have for the worker’s when he soils is, holding get him to the bath- tem in Arizona. That our will not middle of the room, medications, .neglect statutory giving cheeking permit carriers to their tanks, urinal, cleaning super- necessary all medical ser- vising him that he not fall and hurt injured employees if the so does vices to carrier de- medically himself. All of these duties spouse that the claimant has a termines necessary cannot left family husband member could render such ser- opinion, unsupervised. the caretak- stated earlier in the had alone vices. As. different, spouse compen- may paid er the facts of the ease been we But, to do sation carrier to be trained some held otherwise. under the facts of have case, these duties and is Claimant was not entitled to com- this pay for such insurer has and would have pensation for the services Wife dur- spouse. care if it were not paid hours in he received no those which interpretation of If “other treatment” should Given that this case involves attendant care. encompass spouse a statute we are to construe liberal- services rendered ly provide compensation, agree I with spouse typically provid- the other of the sort of other modem courts that marriage, legisla- decisions ed then we invite care is § kind of trained attendant ture to amend A.R.S. to so merely “duty” as “other treatment” and not Hughes, 188 Ariz. at state. See (“The part legislature may expected of a at 1222 alone increase which disability compensation.”). But that not marital commitment. Accordingly, conclude

for us to decide. we finding that the ALJ did not err AND FACTUAL PROCEDURAL to Claimant services Wife HISTORY ordinary akin to household duties than more essentially 26 The facts this case are typically provided by attend- skilled severely in- undisputed. ants. jured compensable, in a 1999 work-related has been accident CONCLUSION provided under our workers’ reasons, 24 For the aforementioned spinal injuries. laws. He suffered head and denying affirm the ALJ’s decision Claimant’s right hemiparesis residual He now has request investigation under A.R.S. 23- spasticity into and of the arm and weakness 1061(J). cognitive problems, although he leg and has *7 people let his needs. The can know PORTLEY, CONCURRING: MAURICE testify Carbajal’s treat- physician to was Mr. Judge. ing physician. He stated that Mr. while KESSLER, P.J., dissenting. Carbajal continent and has an idea of was functions, alone” respectfully question The some basic cannot live “[h]e 25 I dissent. seven-day twenty-four day, spouse quits a her and needs hour a presented is whether who supervision because he is at risk of job provide to extensive attendant a week full-time The falling get up if he tries to and stand. partially paralyzed for her husband is Carbajal commonly Mr. cannot bathe merely performing expect- doctor testified himself, himself, performing “other treat- cannot dress has to have ed of a or is get to get him out of bed and to him compensable under Arizona Revised someone ment” (“A.R.S.”) especially someone of the bathroom section Statutes go case, Carbajal’s age have to spouse provided extensive Mr. In this him, night.5 Mr. in the middle of the dressing bathroom care for her disabled husband — food, him, Carbajal tendency a to choke on his bathing cleaning also has cutting up his indepen- go manager had been able to to the bathroom involved with Mr. Car- 5. A nurse case dently, recently toilet seats he had broken three bajal's contradiction that care testified without have someone Carbajal's at a care center and now had to bathroom had been modi- while Mr. independently help the toilet. and he him sit down to use he could use it fied so that dispute that attendant service up food has to be set for him. er does not food so the Thus, testified, physician Carbajal placed it is undis- compensable. as the Mr. puted Bag- and found the administrative he into care centers both while was Carbajal judge, has to have someone law Mr. dad and later Scottsdale. capacity time in or be help him all the some job to Carbajal quit her full-time Mrs. group setting. supervised in a care for her husband while provide attendant Carbajal’s treating physician’s re- 27 Mr. The insurer he is not in the care center. port that some of stated the attendant pick Carbajal up pays for attendants to Mr. Carbajal requires activity Mr. needs skilled take him to and from the care center and just supervision. and not While the doctor provides attendant care for several hours supervision need testified the care day. dispute The insurer does by medically person not be trained or on provide compen- services those attendants basis, one-to-one he clarified that Mr. Carba- If those attendants do arrive sable. jal completely, he cannot bathe himself can- late, Carbajal must their Mrs. himself, not dress he has to someone have services, although happens less often in help go him out of bed if he needs to times, Carbajal During Mrs. Phoenix. those the bathroom and he is not able to do a lot of everything paid by the attendants does things himself but can them when he voice normally insurer do. treating physician needs them. The further Carbajals typical weekday for the anyone testified that bathed and cleaned Attendants at the Car- is as follows. arrive Carbajal professional Mr. had to be a a.m., bajals’ approximately get him home at understand how do with his disabili- shower, help get ready him up and do his challenges, although ties and that could be help- by family to the care center. This includes done member were able to Carbajal do that.6 It that Mrs. Car- him use his feeds walker. bajal training transport gives received him how him and his medications. her husband from a bed into a wheelchair take him in a to the care attendants then van get him afternoon, to the toilet as well how At about 3:30 in the center. oxygen night. check and maintain his tank at center, pick up him at the care attendants dangerous It would have been for Mr. Carba- home, him and then leave. Mrs. Car- drive jal properly. if the tanks did work bajal left alone is then with paid training. The carrier for that often has to clean because he has also soiled himself at the care center. She Bag- Mr. and Mrs. lived in him,7 his brace and has to feed remove dad, at the Arizona time of the industrial in the change his clothes. At about 6:30 Carbajals Bag- accident. While lived stays evening, an attendant arrives and dad, respondent employer and insurer (“insurer”) Carbajals p.m. about until 9:30 providing professional help ready gets attendant for bed. From Carbajal through agency in for Mr. Phoe- morning, p.m. 9:30 until the next Mrs. Carba- paid apartment nix and for an for Mr. even jal caregiver Carbajal. Carbajal’s Bagdad. attendants in The insur- is the sole for Mr. *8 majority quotes they're 6. The the doctor’s A. able to do that. Yes. from testimo- If ny Carbajal Emphasis supplied. Mr. that did not need a licensed just provider caregiver, report health care or skilled Equally important, in both his and testi- ¶ Supra, slightly The explained attendant. record mony, physician the that the seven testimony different however. The full was: Carbajal requires days a week attendant care Mr. just activity requires that more than “is skilled you picture person Q. Do as a licensed Carbajal supervision" and Mrs. was trained to provider caregiver? health or skilled thought her husband from the bed and that time, move maybe I A. Not all the no. believe some Carbajal Mrs. on how to nurses had educated things, just of these an attendant of sorts. And (Emphasis supplied). not, care for her husband. really we have attendants that are instance, things nurses or like that that skilled cutting up I that this means his food assume tend to his needs. physician witness testified that had your report because the you Q. And have outlined Carbajal by family because Mr. could choke you thought to be done that this could be done swallowing. with needs? when member that’s familiar Respondents appear not to Carbajal up

Mrs. has to wake the middle a care center. night of dispute provided the to assist her husband into such care when was go to to the bathroom to they paid wheelchair move agencies, for it. Carbajal go bowels. Mr. has to to the bath- evidentiary hearing held. Af- 35 An room several times a and sometimes is noting really there no factual ter up forty-five there for If he minutes. soils dispute, ALJ determined that the above himself, Carbajal up. Mrs. has to clean Carbajal Mrs. attendant Carbajal pass

While Mr. can use a urinal to treatment” under the statute was not “other urine, spills he sometimes has and Mrs. Car- traditionally care that because bajal up change has to clean him part of a mar- expected to be During night, Carbajal sheets. Mrs. also riage The ALJ added that commitment. Carbajal’s oxygen has to Mr. check tanks to though compensable even such care was working properly make sure required in Mrs. paid attendant would adjust them. Carbajal’s absence. weekends, During their routine is slightly Saturdays, different. On Mr. Carba- DISCUSSION

jal go does not to the care center and the paid approximately arrives at attendant findings defer to the ALJ’s factual We Carbajal a.m. and to Mr. until attends about light the evidence in the most consider Carbajal 9:30 a.m. Mrs. must then care for upholding the PF favorable to award. Carbajal p.m. until about 6:30 Comm’n, Chang’s 216 Ariz. v. Indus. leaving attendant returns the attendant ¶ 13, (App.2007). 166 P.3d p.m. Sundays, 9:30 On around the attendant undisputed, facts are Where the material takes Mr. to his church and is with question which we issue becomes law 1 p.m. from around 7 a.m. until and then Id.; Finnegan v. In- independently. review again approximately p.m. from 6:30 to 9:30 Comm’n, 108, 109, 157 Ariz. 755 P.2d dus. p.m. (1988). statute, construing ¶32 Carbajal pithily Mrs. described the “liberally, remedially, and in a interpret it provided by explaining care she that this was ensuring injured employees re- manner married, not the man she it was more like maximum available benefits” ceive taking care of a child. overriding purpose of the com- evidence is that the system provide a claimant the pensation pay family insurer members in the fullest opportunity to be made whole to provide other cases to such service when no Comm’n, possible extent. Aitken Indus. agency could attendant care. (1995). 387, 392, 456, 461 statutory language unambiguous Clear and Carbajals investiga- initiated an plain meaning unless ab- “given must be its tion the above attendant services whether consequences result.” impossible surd her were under Comm’n, 23-1062(A). Ariz. Carbajal sought v. Indus. section Dunn construe We must for the attendant care she compensation statutes day during for three hours a the workers’ vided week- placing the days legislative intent of when she has to care for Mr. effect industry. Id. injury on the any care and for the burden of without attendant eve- in the any ambiguity or doubt nings him into his there is when she has Where it in bathroom, statutory language, construe from the we must wheelchair employees working proper- compensability to relieve ensure the tanks are favor injury. Wiley ly him if he himself of the burden and clean after soils *9 99-100, Comm’n, 94, 847 174 Ariz. spills respondents or the urinal. The do not v. Indus. (1993); 595, Mead v. American dispute that care at issue P.2d 600-01 seem to the Co., 73, 76, Refining Ariz.App. 1 reasonable, obligated pay Smelting & (1965) 694, (citing English v. 697 attendants or an 399 P.2d for such care Comm’n, 86, 89, 815, provided in Ariz. 237 P.2d agency for care if it Indus. 73 such

587 (Em- (1951)). act, construing hospital or other treatment.” 817 the we of benefits express language adding the term begin phasis supplied). By course the of “medi- with 97, Wiley, treatment,” majority the statute. 174 Ariz. at 847 P.2d adds to “other cal” statutes, give added, As other must at 598. with we but legislature could have words statute, meaning in the Indeed, to each word majority’s construction not. did making any superfluous. Obregon v. of them render the term “other of the statute would ¶¶ Comm’n, 614-15, 612, 11, 217 Ariz. Indus. superfluous medical ben- treatment” 16, 177 873, (App.2008). P.3d 875-76 already by the statute. efits are covered ¶¶ 16, 614-15, 11, 177 Obregon, 217 Ariz. at Statutory Interpretation 1. (court interpret at should statute P.3d 875-76 ¶ Here, noted, word, making 37 as the ALJ the facts are give meaning to each Thus, really dispute. pre- the issue duplicative). any superfluous or Even word statutory interpretation, sented is one of not, ambiguous, it is if the statute were which 109, 414; Finnegan, Ariz. at at 157 755 P.2d majority’s of the statute also construction ¶ 347, 13, Chang’s, PF 216 Ariz. at 166 P.3d narrowly interprets compensa- the workers’ 138, liberally at which must construe required to inter- tion statutes when we are compensability making of favor and the em- liberally pret provide compensation. them ployee injuries. whole from his Aitken, 461; 392, P.2d at 183 Ariz. at 904 Aitken, 392, 461; 183 Ariz. at 904 P.2d at Dunn, 194, 862; at 177 Ariz. at 866 P.2d Dunn, 194, 862; Ariz. at 177 866 P.2d at 99-100, Wiley, 174 Ariz. at 847 P.2d at 600- 99-100, Wiley, Ariz. 174 at 847 P.2d at 600- 01. 01. ¶ majority The contends its inter ¶38 presented The issue is what “other pretation guided by of the statute is 23-1062(A). treatment” means in section principle ejusdem generis of so ref provides, pertinent part, That statute “medical, surgical hospital” erence to upon employer, every injured notice to the also modifies the term “or other treatment.” employee medical, surgical shall receive ¶¶ Supra, 17-18. There are at least three hospital treatment, benefits or other Initially, problems argument. with medicine, nursing, surgical supplies, face, is clear on its we are statute apparatus crutches and other ... reason- legislature bound has said and what ably required ... during period of applying it interpret are not free to rules disability. (Emphasis supplied). interpretation. Dep’t Kimu P. v. Ariz. ¶ majority concludes that the term Sec., 39, 43, 16, 218 Ariz. 178 P.3d Econ. “other treatment” must mean “other medical 511, (App.2008). See also State v. Chris Supra, agree treatment.” IWhile tian, 6, 1241, 205 Ariz. 66 P.3d majority with the that the term “other treat- Dunn, (2003); at 866 P.2d at housekeep- ment” cannot mean other normal Supreme As the Arizona Court noted in ing spouses expect functions to do for rejecting ejusdem generis argument other, cleaning, each such as cook- provision, clear constitutional “venerable ing, taking garbage out normal statutory principles of construction [would repairs, I household conclude that “other violated a constitutional because] ‘[w]here types treatment” includes the other of at- clear, judicial provision is no construction is ” Carbajal provided, tendant care Mrs. includ- Roscoe, proper.’ State v. nights the on-call care at that such 68, 71, (quot Ariz. 912 P.2d care is not normal a married “services” which Sanitary ing Pinetop-Lakeside Dist. v. Fer couple expect perform. I each other reach 1032, 1034 guson, Ariz. this conclusions several reasons. (1981)). goal ultimate This is because the majority’s legislative conclusion misinter- effect to the intent and the 23-1062(A). above, prets goal language guide section As noted best for such is the clear provide compensation Dairymen does not of a statute. United Arizona treatment”; 592, 596, 12, provides Rawlings, for “other medical Ariz. Here, “medical, language surgical (App.2008).

588 situation, legislature everyday the clear —the used terms “medi marital but some involved cal, surgical hospital and benefits or other beyond skilled attendant care the nor- well If it treatment.” had wanted to limit the checking mal marital situation. It included “medical, compensability surgi services tanks, Carbajal’s oxygen providing all treatments,” hospital cal and benefits or it night supervision assisting get him to out not other would have added “or treatment.” (and go of bed in the bath- and from Applying ejusdem generis here would render room) fall, cutting up so that he would not superfluous. Obregon, “other” 217 Ariz. at food, cleaning him- when he soiled ¶¶ 614-15, 11, 16, 177P.3d at 875-76.8 type necessary, self. This is the same Additionally, 42 Hughes compensable Indus. care been which would have Comm’n, 150, 153-54, Ariz. 933 P.2d persons paid by third the insur- 1218, 1221-22 (App.1996), major cited present er if Mrs. not or were able ity majority’s in 19 does not assist perform them. ejusdem generis analysis because majority’s interpreta- The erroneous premised rejecting per care for a third highlighted by tion of the statute is its reli- son, majority not the claimant. As ex Chandler, Trucking ance on Warren Co. v. plains, Hughes request for involved child 1108, (1981), 221 Va. 277 S.E.2d 488 expenses that care so the claimant could Poole, Kenbridge Va.App. Const. Co. v. medical and receive treatment her indus In 486 S.E.2d 567 Warren injury. in Hughes trial Id. The court noted Trucking, Virginia Supreme Court held interpreted that the statute had to be liberal that attendant care similar to the care ly provide compensation, noting that “oth compensable vided here unless it types er” of services needed a claimant to nature, is, provid- in medical in that it had to be obtain services were them services,” background selves as “other such ed someone with a medical subject as a new van for the claimant services to the and control of a direction obtaining or travel reimbursement physician. Kenbndge, cov 277 S.E.2d at 493. Id. at at 1221 ered treatment. P.2d medically-oriented the court found that more (citing Terry Co. v. Indus. Grantham compensable. S.E.2d at Comm’n, 180, 183, 154 Ariz. may 569-70. Those conclusions be correct Comm’n, (App.1987) and Martinez v. Indus. Virginia under law because the court was (App. construing significantly a statute which 1993)). Clearly a is not van travel “medi Virginia than our different statute. The stat- The then cal service.” court held child ute limited to services expenses distinguishable physician necessary “a ... and such other “[cjhild care, contrast, provid is a service attention, ... as the nature of the medical person, injured ed to a third addition, injury may require ... and in such generally is not worker. services itself surgical hospital supplies service Hughes, medical treatment.” considered may necessary by attending be deemed (emphasis Ariz. at 933 P.2d at 1222 (quoting physician____” 277 S.E.2d at 492 Here, contrast, supplied). the care was 65.1-88) sup- § (emphasis Va.Code Ann. claimant, person. not a third contrast, plied). In stark our statute is much broader, limiting care to medical treat- even we were narrow- providing compensation for “medi- ment but ly interpret “other treatment” to mean “medical, ... cal benefits or other surgical hospital treatment^]” benefits [and] treatment,” (emphasis supplied). A.R.S. the record shows [and] rely should not on statutes from other was not We statutory language merely jurisdictions those of one for another argument simply majority's its views of what the law should be lieu of 8. The because it tute clarity a different as to the legislative simply by concluding comes to conclusion its intent statutory language means that the lan- reading clearly written statute erroneous significance. guage On that is not clear has little "unclear.” makes the statute theory, majority court substi- of a divided could *11 significantly is different than our own. Tar assistance. 693 A.2d at 730. The claimant’s Comm’n, taglia v. Indus. Ariz. 200- provided assigned by tasks to her claim- wife 868-69 physician including administering and ant’s medications, monitoring keeping loga of her ¶45 Moreover, majority’s conclusion being husband’s behavior and on-call in case contradiction; an has inherent if attendant he assistance. Id. This is similar to needed treatment,” why services are not “other then scenario here in Car- factual which Mrs. pay insurer have to for the exact bajal training paid by had received for persons regardless same care third carrier on her from how move husband training simply they their medical bed to a wheelchair. She also had been spouse injured person, e.g., are not the of the night, trained to test his tanks at party home-caregivers third or care facili- all had to be call because he was ties? subject falling help and she would have 2. The to the bathroom. She also had to cut Court’s Conclusion Conflicts with food, Majority him his medications and of Modern Courts clean him if he soiled himself. ¶ Many jurisdictions country across provided have held that the kind of care here ¶48 apply The court in Close had a compensable under compen- their workers’ provided statute for for normally sation provided statutes as care not surgical, nursing “reasonable medical and by spouse part marriage of the commit- rejected services.” Id. at 731. It Warren Annotation, Appel, ment. See Warren J. Trucking compen- and affirmed the award Compensation: Recovery Workers’ Home for services, sating noting nursing for by Spouse, Service Provided 67 A.L.R.4th spousal beyond ordinary care went house- (1989 765, §§ Supp.) (“Ap- 9-10 and 2007 interpreted hold duties and that courts had pel”). See also 82 Am.Jur.2d Com- Workers’ “nursing services” to include such as services (2008) (several pensation § 453 courts have care, medications, bathing, giving 24-hour held that in nursing services the nature of mináis, emptying assisting moving, assist- injured to an worker his or dressing going to the bathroom spouse generally her are compensable as and the need for on-call care. Id. at 731-32 benefits; medical shopping “such duties as eases). Here, course, (collecting case cooking ordinary been have deemed stronger compensating Carbajal Mrs. services, noneompensable therefore as- while for those exact services because the statute bathing, dressing, sistance in toileting, and includes, to, “nursing” but is not limited ser- moving about the house has several cases vices, expressly provides compensa- but also compensable.”). been held Indeed, tion for “other treatment.” the lead- ¶ 47 types ing authority Several eases show that the on workers’ laws explains services here should be under normal household while duties qualify our “other treatments” standard. compensation, Close v. would not the ma- Co., Superior Excavating jority 166 Vt. of courts hold that duties now (1997), injured spouse A.2d 729 “nursing” had which are more like injury supervision compensable. severe head and needed 5 Arthur Larson Compen- day. 24r-hours He could not take medi- Lex K. Larson, Larson’S Workers’ own, cation on his prepare could not own 94.03[4][b] [d] sation Laws (“Larson”).9 meals and could dress himself without discussion, majority ity’s Carbajal’s treating physician 9. The contends that the care Car- Mr. bajal provided typically simply is not like ren- said that the attendant care was not su- ¶¶ Supra, pervision, required activity,” dered a nurse as in Close. 20-21. "skilled but statute, Unlike our the statute in Close limited while the attendant care needed at home was not "surgical, necessarily services to medical and one-on-one care a healthcare vider, nursing by family services.” 693 A.2d at 731. it could be done members ¶¶ Supra, some of the services & nn. Close could do it. 26-27 5-6. duties, practical nursing just Training moving like Mrs. provided. Contrary major- Id. at of bed to him to a bathroom without 730-31. out omitted). Similarly, language Edward Kraemer & court held Sons, 1286, 1288-89 Downey, Inc. v. provid- of the statute “focuses on the service (Colo.Ct.App.1992),the court held that a ed, car provid- not the status of *12 devotion compensate rier had to a claimant for a ordinary er.” Id. It held house- that while spouse’s eating, pre bathing, in assistance statute, are not hold tasks those within paring him for night and showering. bed at cleaning, prepa- services would include house It compensation also held that due for washing ration of meals and of clothes. In spouse being on an on-call available basis contrast, serving bathing, in and “meals bed emergency in case her husband had an even dressing, person are escorting and a disabled if doing she was also at household work ordinary tasks. That a ‘con- household reasoned, same time. As the court a third- spouse perform may scientious’ in fact these party being attendant be on-call would enti employer’s services does diminish the payment tled to if he or she could even do compensate person duty him or her as the other activities and in either case the care duty discharges employer’s giver passively providing attendant care. them.” Id. vide 1289; 852 at P.2d see also Brown v. Eller courts that ser 51 Other have also held Co., 538, Mich.App. Outdoor Adver. 111 314 by provided as those Mrs. Carba vices such (on-call 685, N.W.2d 687-88 services of jal ordinary are deemed household compensable wife can be even wife could duties, but are in the nature of custo more perform peri household chores nursing od). E.g., dial or duties. Don Harris 745, Henderson, Plumbing v.Co. 454 So.2d Co., Kushay Dairy 50 v. Sexton 394 (under statute (Fla.Dist.Ct.App.1984) 69, (1975), Mich. N.W.2d 205 husband permitting for custodial care permanently had become disabled a com- family normally member if not those pensable injury. spent He most his time family provided by gratuitously, members in bed and moved about in a wheelchair dressing, administering as services such pain or with canes. from in He suffered medication, functions, assisting sanitary legs from squeezing spinal nerves. rising therapeutic assisting donning and him, at N.W.2d His bathed wife are apparatus compensable); Part Gibson helped dress, gave medication, him Hughes, 823 So.2d Oil Works v. Estate bed, helped served meals him to the bath- 16, ¶¶ 1, (Miss.Ct.App.2002) room, appointments. and drove 614— him to Id. (when employee using restricted to compensa- The relevant statute crutches, dispensing and wheelchair wife’s medical, surgi- ble care included “reasonable medication, doing massages, assisting him in hospital cal and medicines services and change bathing, getting up at recognized other attendance or treatment assisting if he had an and sheets accident they legal, the laws of this state as when getting him in from and bed to wheelchair (internal quotations needed.” Id. at 206 nursing he fell were as omitted). The ap- and mere household services were not rejected peals compensa- board the claim willingly regardless of wife duties whether ground tion on the that her services were performed tasks or non whether any those dutiful wife would her by or routinely performed tasks technical Id. supreme husband. court reversed. nurses); practical Stephens v. derlies or Reviewing prior appeared to cases which Inc., Trucking, 781- Crane 446 S.W.2d appeals irreconcilable with the board’s deci- (wife’s (Mo.1969) sion, of care providing the court the conflict to attributed helping go to bathroom beyond form of standard of “whether the services are husband braces, taking off ordinary wifely conversely, putting on duties those without braces, himself, shaving any helping him dress conscientious wife would her (internal quotations keeping falling Id. above husband[.]” at 208 from hurting checking falling night. Supra, and for himself adjusting middle of the tanks beyond ordinarily performed provided. if a she third- spouse another); one party attendant, not, Breckle v. trained or Nest, Inc., Hawk’s 193-94 care, S.W.2d it is that it be and overruled, (Mo.Ct.App.1998), other paid had been the carrier. This is the grounds by Hampton, Big Boy Steel type same of on-call care needed and held Erection, (Mo.2003) (re- 121 S.W.3d Close, compensable in Kraemer and those versing spouse’s denial of award for services myriad finding other cases observing supervising husband who beyond to be down, apt him, bringing to fall meals to normal the marital commitment. getting him bathing dressed and him al- *13 765, § Appel, 67 A.L.R.4th though cane; husband could walk with a ¶ Carbajal present 53 Mrs. had to be at all fact registered that was wife nurse did not insurer-compensated times an attendant was preclude compensation). award of See also care, present. provide not She had to on-call Bd., Comp. Henson v. Appeals Workmen’s help get had to her husband to the bath- Cal.App.3d 455-58, 462, 103 Cal. room, to had clean urinals and to clean him if (1972) Rptr. (reversing denial of claim himself, brace, he soiled had to remove his spouse’s urinal, emptying services in medications, up had to him had to set bathe, helping dress, helping him ac- his food so he did not choke and had to companying him to bathroom so he would adjust oxygen check and tanks. Medical- fall, providing medications, getting up in ly, she or someone else had to be all there night middle of to assist him when he was night Carbajal to Mr. assist to pain; court determined services were use the bathroom because he at the risk was practical the form of nursing services and falling. Downey, See 852 P.2d at 1288-89 employer that and earner third (on-call availability party if was even marriage beneficiaries to a contract to caregiver doing contend was other obligation has activities while to being such available to care for if employer care which the husband he or carrier it). only obligated would needed difference provide). otherwise to between the Barkdoll, third-party A.G. Crunkleton Elec. attendant or Co. v. Cf. living Md. assisted which the A.2d insurer did not dis- (broadly construing pute “nursing” compensable, was care under and the attendant compensation workers’ Carbajal encompass providing, statute to Mrs. was was that care and necessary attendance Carbajal Carbajal’s each Mrs. ease was Mr. wife. and as not contemplated by majority the usual mari- While the claims that the care relationship tal practical merely can include vided was attendant services not re- services). nursing skill, quiring any supra, it is Carbajal that Mrs. had to be trained move Carbajal 3. Mrs. Provides Trained Care Carbajal Mr. out of injuring bed without in the middle and had to be majority concluding also errs night. trained to monitor his tanks at Carbajal’s Mrs. attendant care was not majority interprets while the “medically required” Carbajal and Mrs. physician’s testimony merely requiring providing trained care. As the record care, physician’s shows, report unskilled attendant care in this case was medi- testimony clearly cally required stated that some of Mrs. treating physi- because the Carbajal’s undisputed testimony activity cian’s duties “skilled Mr. Carbajal requires just supervision” more than could be left never alone since he injury by falling testimony was at risk of and his if he tried to reflected that some of get up choking by family and was at risk of these skilled needs could be met while eating. Carbajal they’re Mr. members While could at times able to do that.” As “[i]f own, physician to the bathroom on emphasize, he had was careful to recently problems falling had Carbajal’s and had to not that Mr. needs at home sitting care, have assistance in the toilet. Mrs. could be met unskilled training received for some of the require “not all” of his home needs would spousal Putting skilled healthcare on a one-on-one of her aside duties.11 wheth- basis. manifestly er this error be more rec- ognized caring spouse husband provided here, 54 That the other quit job had to care his full-time for his family simple than tasks unrelated claimant-wife,12 permits a result such em- condition, Carbajal’s ployers responsi- and carriers to avoid their supported the fact had to bility provide compensation for reasonable her full-time work care for her hus- leave necessary compensable care under the leading band. As one authorities compensation Regardless workers’ statutes. points out, fact, workers’ ordinary of spous- what the marital duties claim, strengthens while not essential to other, may respon- es be to care for each compen- that the care conclusion should be third-party dents are not beneficiaries of the sable. Larson at 94.03[4][c].10 permit marital so as to contract them Policy provide reasonably avoid their nec- 4. Public Henson, essary “other” treatment. Cal. Finally, majority’s holding is con- App.3d 458,103 Cal.Rptr. at trary policy public underlying place scheme —to *14 expenses relating reasonable CONCLUSION injuries industry on the and to ensure the reasons, interpreted to 56 For I statute is make the successful all of above would Aitken, claimant whole. Ariz. at 904 hold that attendant care services Mrs. 461; Dunn, Carbajal provided paid at in lieu of P.2d at has attend- only many living directly at 862. The difference ants or which are assisted Carbajal Carbajal’s injuries, Mrs. undertook to care for including tasks related to Mr. Carbajal’s night, Mr. condition her at are “other on-call assistance compensable care which would have been treatment” and are under sec- 23-1062CA). skilled or attendants is unskilled tion Carbajal Carbajal’s spouse. that Mrs. is Mr. conclusion, logical holding

Taken to its today permit compensation car- deny paid attendant care to claim-

riers theory that such paid ants on the care is not necessary it could and should be

performed by part the claimant’s compensation majority by analysis minimizes this free to refuse 10. The fact contend- under that Carbajal during day any has even if that Mrs. time such attendant care would paid Carbajal parties. Mr. is at the and there have it if third care center sought was no evidence she new work. No one Carbajal sought whether she a differ- asked Mrs. say imply 12. This is not to result job at which she could work the five ent be different if the roles between Court would Carbajal hours Mr. is care center to six at the reversed, but husband and wife were to note seeking for those and she is not holding that the error in that such attendant care hours. part is made more of "marital duties” obvious if those roles were traditional views switched. however, majority attempts presume, to avoid that result One could this result couple contending conclusion limited if a married entered that its here is be different However, premarital majority’s agreement in this into a about their duties in the facts case. limited; easily compensable injury. Alternatively, holding case of cannot be so it holds that nature, truly all obtain a divorce and then the care is medical in could unless agree noncompensable attendant care to attendant care under stat- Thus, only compensated spouse. employers but if workers’ com- ute pensation would be carrier. and workers' carriers