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Larson’s Spotlight on Recent Cases: Attorney Fees and the Common Fund Doctrine

January 24, 2013 (5 min read)

Larson's Spotlight on Attorney Fees, Venue, Intentional Tort, and Refusal of Light Duty. Larson's surveys the latest case developments that you need to know about. Thomas A. Robinson, the staff writer for Larson's Workers' Compensation Law, has compiled the list below.

NE: Worker's Lawyer May Not Recover Attorney Fees From Medical Provider Under Common Fund Doctrine

The so-called "common fund doctrine" employs the equitable principle that a party who incurs costs in creating a common fund that benefits others may call on them to share those costs.  Does that doctrine apply to an instance in which a workers' compensation claimant prosecutes a claim to successful conclusion and, as a result of the claimant's action, a medical care provider receives payment for services rendered and medical supplies provided to the claimant?  The Supreme Court of Nebraska recently answered the question in the negative, holding that a law firm that secured workers' compensation benefits on behalf of an injured worker, including medical expenses in the amount of $33,011.20 owed to a surgical firm for medical care provided to the worker, could not maintain an action against that surgical firm under the common fund doctrine. A trial court earlier had dismissed the law firm's action and the high court affirmed.  The court indicated that the last sentence of Neb. Rev. Stat. § 48-125(2)(a) plainly stated that attorney fees could not be deducted from any amount ordered to be paid for medical services; nor could medical providers be charged for attorney fees.  The court stated that the law firm could not "do an end run around this prohibition simply by instead filing its action for attorney fees in district court."

See Walentine, O'Toole, McQuillan & Gordon, L.L.P. v. Midwest Neurosurgery, P.C., 285 Neb. 80; 2013 Neb. LEXIS 12 (Jan. 18, 2013).

See generally Larson's Workers' Compensation Law, § 133.01.

TX: For Mexican Citizen, Venue for Workers' Comp Case Is Not County Closest to His Home

A Texas trial court trial court did not err by transferring venue from Maverick County, located on the Texas-Mexico border, to Travis County where the worker was a citizen of Mexico and did not contend that he lived in Maverick County at the time of his injury, held a Texas appellate court recently.  The court indicated that there was no provision in Tex. Lab. Code Ann. § 410.252(c) (Supp. 2012) for venue in the Texas county nearest a non-resident's place of residence.  Because Tex. Lab. Code Ann. § 410.252(c) did not apply, the general venue statute applied instead. Tex. Civ. Prac. & Rem. Code Ann. § 15.002(a)(3) provided that venue was proper in the county of a corporate defendant's principal place of business, which was Travis County.

See Rayas v. Texas Mut. Ins. Co., 2013 Tex. App. LEXIS 298 (Jan. 11, 2013).

See generally Larson's Workers' Compensation Law, § 124.01.

FL: Construction Worker's Intentional Tort Claims Fails Under State's "Virtually Certain" Standard

Construing Florida's narrow, "virtually certain," exception to employer immunity from tort related to workplace injuries [see § 440.11, Fla. Stat.], a Florida appellate court recently affirmed a decision by a state trial court granting summary judgment to an employer that had been sued by a construction worker injured in a crane accident.  The court noted that an injured employee was required to prove by clear and convincing evidence three elements in order to sustain his or her civil action against the employer:  (a) employer knowledge of a known danger, based upon prior similar accidents or explicit warnings specifically identifying the danger that was virtually certain to cause injury or death to the employee; (b) the employee was not aware of the danger, because it was not apparent; and (c) deliberate concealment or misrepresentation by the employer, preventing employee from exercising informed judgment as to whether to perform the work.  There was no evidence that the actions of the employer were virtually certain to cause injury.  Indeed, the crane activity had been successfully performed without injury earlier in the day.

See Gorham v. Zachry Indus., 2013 Fla. App. LEXIS 924 (Jan. 23, 2013).

See generally Larson's Workers' Compensation Law, § 103.04.

PA: Employee's Loss of Borrowed Transportation Is Not Sufficient Reason to Refuse Light Duty

A Pennsylvania appellate court recently held, in relevant part, that the Board erred when it affirmed a WCJ's decision denying an employer's petition to suspend and/or modify a claimant's workers' compensation benefits for the employee's refusal of light duty where it appeared that the reason for the refusal was the loss, on the part of the employee, of his borrowed transportation to the job.  The court held that it was the transportation difficulty-not his work-related injury-that led to his loss of earning power.  The court indicated the WCJ had come to an incorrect conclusion that the employer had to establish that the claimant's loss of earnings was the result of his bad faith.

See North Pittsburgh Drywall Co., Inc. v. Workers' Comp. Appeal Bd. (Owen), 2013 Pa. Commw. LEXIS 13 (Jan. 9, 2013).

See generally Larson's Workers' Compensation Law, § 85.02.

Source: Larson's Workers' Compensation Law, the nation's leading authority on workers' compensation law.

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