McKissic v. Bon-Son Construc., Inc., etc. al. No. WC23-6528 (W.C.C.A (February 14, 2024).
The Employee sustained severe injuries in a 40 foot fall from scaffolding on July 9, 1999. The injury left to an extended hospitalization and surgeries. After release from the hospital the Employee was unable to care for himself and was deemed permanently and totally disabled July 9, 2001. After some litigation, it was determined by Findings and Order that the Employee required some home health aide services which were provided by his parents and they were compensated for this work. Payments were to be made directly to the Employee’s parents.
In 2018 the Employee moved to Nevada to reside with his brother who had previously provided nursing services intermittently when his parents were unavailable.
After the death of the Employee’s father, the Employer and Insurer discontinued payment of these services. A medical request was subsequently filed. A Findings and Order dated April 11, 2022 was issued awarding the brother provided nursing services. This order did not specify to whom payment should be made. Neither party moved to amend the findings to identify the party.
On April 21, 2022 Employer and Insurer made a direct deposit into the bank account of the Employee in the amount of nearly $80,000.00 with no explanation. On May 3, 2022 Employer and Insurer asked the attorney for the Employee whether payment should be made to the Employee or his brother; 6 days later the Employee’s attorney identified the brother for payment to be issued. Subsequent direct deposits were also made into the Employee’s bank account through June 2022 totaling around $18,000.00.
Beginning in August 2022, payments began to be made to the Employee’s brother. In September 2022 the brother began to look into why he had not been paid for services since 2018 and hired a lawyer. The Employer and Insurer forwarded a copy of the original findings and order. The brother also filed a motion for determination that he had not been made aware of his right to intervene. Employer and Insurer filed a Petition to Discontinue seeking reimbursement from the Employee for the amounts paid to him and that asserted it was received in bad faith. Everything was then consolidated.
The Compensation Judge found the Employee knew of these payments and the reason behind them and that the Employee had paid his brother $27,500. There was no finding regarding payments received in bad faith. It was determined there was no overpayment. She further found the brother could have been identified as a potential intervenor but was not noticed. The order also found this lack of notice did not materially prejudice him because he participated in the original Hearing. The motions by both parties were denied. The Employee’s brother appealed.
On appeal the WCCA that the compensation judge erred in the finding that the Employee knew these payments were for and therefore reversed the determination that there was not an overpayment. The WCCA found that the record showed the Employee had a difficult time managing finances and required assistance with paperwork and paying bills and that he was not informed of the reason for the payments that were made to him.
Additionally, based on the above, the WCCA ordered the Employer and Insurer pay the brother for the nursing home services less the amount he had been paid by his brother but that they may take a credit for the overpayment on other future benefits paid to the Employee.
Takeaway: It is important to ensure all potential intervenors are placed on Notice of Right to Intervene. It is also important to address any ambiguity in Orders immediately to avoid any confusion which could lead to decisions that could be harmful to any party.