Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D2024-2817 _____________________________ KIMBERLY FISH, Appellant, v. EXTREME ENTERPRISES OF MARION COUNTY, INC. d/b/a EXTREME LAWN CARE, and AMTRUST NORTH AMERICA OF FLORIDA, Appellees. _____________________________ On appeal from the Office of the Judges of Compensation Claims. Ralph J. Humphries, Judge. Date of Accident: July 27, 2022. August 26, 2026 M.K. THOMAS, J. Claimant/Guardian, Kimberly Fish, appeals an order of the Judge of Compensation Claims (JCC) denying her claim for reimbursement of expenses related to a guardianship for her son, the injured worker. Because a causal relationship existed between the compensable traumatic brain injury, which precipitated the JCC’s invocation of the provisions of section 440.17, Florida Statutes (2022), and the need for the guardianship to pursue workers’ compensation benefits, the expenses are reimbursable. Accordingly, we set aside the JCC’s order and remand for further proceedings consistent with this opinion. I. Facts Claimant is the mother and now the guardian of Joseph Reed, the injured worker. 1 On July 27, 2022, Mr. Reed sustained a catastrophic brain injury because of a compensable workplace accident. He was struck by a motor vehicle while operating a “gator” vehicle to edge grass along a highway. Claimant hired a workers’ compensation attorney, Jesse Rowe, to pursue workers’ compensation benefits for her son. Attorney Rowe subsequently filed multiple petitions for benefits (PFBs) with the Office of the Judges of Compensation Claims. He later contacted the employer/carrier (E/C) requesting assistance in acquiring a guardian for the injured worker. The E/C declined. Attorney Rowe filed a Motion to Appoint Guardian and requested that Claimant be designated as the payee on workers’ compensation checks from the E/C. After a hearing on the motion, the JCC denied the request to designate Claimant as the payee because no PFBs “are pending and, thus, no compensation awards have been or will be issued at this time, the statute does not allow for the designation of a person to receive compensation on the injured worker’s behalf.” However, he found that there was “no dispute the injured worker is incompetent.” The JCC determined that appointment of a guardian “is appropriate and necessary to receive compensation payable to the injured worker under this chapter as well as to exercise the powers granted to or perform the duties required of such person under this chapter.” Claimant was ordered to pursue by appropriate means before a court of competent jurisdiction the appointment of a guardian for the injured worker. Lastly, the JCC raised concerns whether, given 1 Following appointment of Kimberly Fish as guardian for Joseph Reed, the Judge of Compensation Claims granted an unopposed motion to substitute case parties. The order of August 14, 2024, substituted Kimberly Fish for Joseph Reed as the claimant. 2 that the injured worker was incompetent, “he can properly pursue claims or enter into contractual agreements to retain counsel.” Later, additional PFBs raised pending claims, and the parties appeared at a mandatory mediation conference in February 2024. Because of the injured worker’s incapacity and the absence of a guardian, the mediation was suspended. To pursue his claims for workers’ compensation benefits and comply with the JCC’s order, Claimant retained an attorney specializing in guardianships, Sean Bogle. Attorney Bogle petitioned the circuit court for appointment of a guardian. The guardianship process required a mental health screening and that the injured worker be represented during the committee evaluations. Fees for the examining committee totaled $1,500. The filing fee for the guardianship proceeding was $414 with a separate court fee of $239.09 for the proceeding to determine incapacity. In June 2024, the circuit judge entered an order declaring that the injured worker was totally incapacitated and appointed Claimant as his guardian. Attorney Rowe then filed a PFB seeking reimbursement of the expenses of the guardianship proceedings and a claim for attorney’s fees and costs under chapter 440, Florida Statutes. Once Claimant was appointed as guardian, the workers’ compensation case could proceed, mediation was reconvened, and most of the outstanding claims were resolved. Regarding the claim for reimbursement of the expenses of the guardianship, the E/C denied responsibility, arguing that the JCC did not have jurisdiction to address reimbursement of guardianship costs. The parties proceeded to final hearing on the issues of reimbursement of the guardianship expenses and a claim for attorney’s fees and costs for litigation of entitlement to the reimbursement. The JCC issued a final order denying the claims for reimbursement ($2,428.09 for the guardianship proceedings and $10,500.00 for payment of Attorney Bogle’s fee for his representation in the guardianship proceedings), and the claim for fees and costs regarding litigation of the reimbursement of the expenses. The JCC determined that: (1) all services rendered by Attorney Bogle were in the guardianship proceedings and not in 3 the workers’ compensation proceedings; (2) there was no showing that the E/C denied any benefits; (3) there was no showing that the expenses of the guardian were in “the handling of the claimant/ward’s rights, duties, and responsibilities under Chapter 440, obtaining medical services for the claimant, and representation of the claimant and proceedings before the JCC”; and (4) there was no showing of entitlement to attorney’s fees and costs associated with the PFBs at issue. After denial of a motion for rehearing, Claimant timely appealed. II. Analysis “To the extent an issue turns on resolution of the facts, our review standard is CSE; to the extent it involves an interpretation of law, the standard is de novo.” Sullivan v. NUC02, LLC/Broadspire, 308 So. 3d 659, 662 (Fla. 1st DCA 2020) (citing Benniefield v. City of Lakeland, 109 So. 3d 1288, 1290 (Fla. 1st DCA 2013)). A JCC has an “obligation to ensure that the interests of a mentally incompetent claimant are protected.” Se. Concrete Floor v. Charlton, 584 So. 2d 574, 576 (Fla. 1st DCA 1991). A JCC errs when it neglects this obligation. See Cornelius v. Sunset Golf Course, 423 So. 2d 567, 569–70 (Fla. 1st DCA 1982); Aris v. Big Ten Taxi Corp., 330 So. 2d 465, 466 (Fla. 1976) (holding that it was error to not suspend the proceedings until a guardian had been appointed and decide the claimant’s case without any presentation on his behalf through a guardian or appointed counsel). Section 440.17, entitled “Guardian for minor or incompetent,” provides as follows: Prior to the filing of a claim, the department, and after the filing of a claim, a judge of compensation claims, may require the appointment by a court of competent jurisdiction, for any person who is mentally incompetent or a minor, of a guardian or other representative to receive compensation payable to such person under this chapter and to exercise the powers granted to or to perform the duties required of such person under this chapter; however, the judge of compensation claims, in 4 the judge of compensation claims’ discretion, may designate in the compensation award a person to whom payment of compensation may be paid for a minor or incompetent, in which event payment to such designated person shall discharge all liability for such compensation. While under the statute JCCs have a duty to protect the interests of an incompetent person by ordering appointment of a guardian, a JCC lacks the jurisdiction to make the appointment. Instead, jurisdiction lies in the circuit court. See § 744.102(5), Fla. Stat. (2022). Thus, if a JCC determines that a claimant is incompetent, proceedings under chapter 440 are halted pending guardianship evaluation and appointment of a guardian, if required. The question presented here—whether the expenses of obtaining a guardianship are recoverable under chapter 440—is not a matter of first impression. See Fla. Cypress Gardens v. Lavoy, 932 So. 2d 542 (Fla. 1st DCA 2006); Charlton, 584 So. 2d at 574. This Court has previously answered the question in the affirmative. However, clarification is warranted on the standard to determine what expenses are reimbursable. That is, what constitutes expenses “incurred in and about the handling of the claimant/ward’s rights, duties and responsibilities under Chapter 440 . . . . ” We begin with Charlton. The E/C appealed a JCC order requiring it to reimburse the claimant for guardianship expenses and to pay attorney’s fees and costs to the claimant’s workers’ compensation attorney related to litigation before the JCC of the reimbursement claim. Charlton, 584 So. 2d at 575. As here, the JCC questioned the claimant’s competency to proceed and instructed his attorney to petition for guardianship in circuit court. Id. Charlton was adjudicated incompetent, and the circuit court judge determined the claimant’s attorney in the guardianship action was entitled to fees and costs and that the fees requested were reasonable and disbursable from the guardianship account. Id. A PFB was filed requesting reimbursement for the costs and fees related to the guardianship action. Id. Following a hearing, the JCC found that the fees requested by the claimant were properly recoverable against the E/C. Id. at 575–76. 5 On appeal, the E/C in Charlton argued that the JCC was without jurisdiction to order reimbursement of the fees and costs associated with the guardianship proceeding. Id. at 576. This Court rejected the argument, explaining that “[s]ection 440.17 contemplates that a guardian is responsible to ‘exercise the powers granted to or perform the duties required’ under the Workers’ Compensation Act,” and to accept the E/Cs argument “would be in derogation of the purposes of the Act as well as [s]ection 440.17.” Id. Further, this Court found that “[i]t was undisputed that there was a causal relationship between the subject [work] accident and the mental disorder which precipitated the JCC’s invocation of the provisions of 440.17 and the consequent establishment of the guardianship for the claimant.” Id. Finally, this Court instructed that the guardianship fees and the attorney’s fees related to guardianship are properly awardable against the E/C, and set forth the following standard for recoverable expenses: “[S]uch fees are awardable only to the extent that they are incurred in and about the handling of the claimant/ward’s rights, duties and responsibilities under Chapter 440 . . . . ” Id. In Charlton, this Court affirmed reimbursement of the expenses of the guardianship proceeding but reversed and remanded on two issues. On remand, the JCC was instructed to 1) carve out attorney’s fees incurred in representing the claimant in a separate, disassociated criminal proceeding; and 2) reverse the award of payment of attorney’s fees and costs to the workers’ compensation attorney for litigation of the reimbursement before the JCC, but for a narrow reason. Id. at 576–77. Charlton’s workers’ compensation attorney limited his attorney’s fee entitlement claim before the JCC to section 440.34(3), Florida Statutes, which provides for a fee if the E/C denies that a compensable accident occurred and the claimant prevails on the issue. Id. at 576. This Court reversed the fee award under section 440.34(3) because, “[t]hough the institution of guardianship proceedings and the attendant costs incurred are causally related to the claimant’s industrial injury in the case at bar, it cannot be construed as the occurrence of an injury which was denied by the E/C.” Id. Charlton did not declare that attorney’s fees and costs could never be awarded to a workers’ compensation attorney for successful litigation before a JCC regarding reimbursement of guardianship expenses. 6 In Lavoy, the E/C appealed a final order directing it to reimburse the injured worker for the fees and expenses of her court-appointed guardian. 932 So. 2d at 542. This Court reversed and remanded because the correct standard for reimbursement was not applied. Id. A guardian was appointed by the circuit court, and the guardian performed a variety of services for the injured worker in addition to pursuing her workers’ compensation benefits. Id. at 542–43. The circuit court ordered the guardian be paid $8,534.25 in fees. Id. at 543. The E/C agreed to pay the guardianship expenses rendered in connection with claims for workers’ compensation benefits but not others that were “disconnected” to the workers’ compensation claim. Id. The JCC approved the fees and costs relating to all the guardian’s services, including those that were unrelated to pursuit of workers’ compensation benefits. Id. On appeal, this Court reversed the order because the issue was not whether the guardian performed all of the services listed in her bill. “Rather, the question [was] whether some or all of the services qualify for reimbursement in a claim against the E/C.” Id. On remand, the JCC was instructed to award reimbursement of the guardianship expenses for only the services performed in the course of pursing claims for workers’ compensation benefits. Id. A third opinion of this Court, Valdes v. Galco Construction, 922 So. 2d 252, 257 (Fla. 1st DCA 2006), provided insight regarding “reimbursable services” falling within “the course of pursing claims for workers’ compensation benefits.” Id. at 257. Valdes appealed an amended order from a JCC because he asserted the award of an attorney’s fee to his attorney was inadequate. Id. at 253. More than ten years after the E/C began paying Valdes workers’ compensation benefits, it initiated video surveillance, took the deposition of Valdes, and furnished the results of both to the Florida Division of Insurance Fraud. Id. at 254. Later, Valdes was arrested and charged with insurance fraud in connection with his workers’ compensation claim. Id. Criminal charges were filed against Valdes for alleged violations of section 440.105, Florida Statutes (1999). Id. The criminal charges and his entitlement to workers’ compensation benefits turned on the same facts. Id. at 257–58. 7 Valdes hired a workers’ compensation attorney and a criminal attorney. Id. “In the criminal case, Valdes refused to admit guilt or accept any plea agreement that would render him ineligible for workers’ compensation benefits. Shortly before the criminal case was to have been litigated–but not before Mr. Valdes had become indebted to his criminal defense attorney, Mr. Markus, for attorney’s fees in the amount of $75,000–the State Attorney nolle prossed the criminal case.” Id. at 254–55 (internal citation omitted). The JCC declined to award fees to either of Valdes’s lawyers if the fees were tied to the criminal matter. Id. at 255. In reversing, this Court found that the JCC erroneously proceeded on the assumption that no fees should be awarded “for work related to the criminal matter,” even if performed by his workers’ compensation attorney and reasonably incurred in anticipation of and preparation for hearings before the JCC. Id. at 258. The JCC reasoned that, “[t]he amended order on attorney’s fees stated categorically that fee record ‘entries [involving the criminal matter] on their face establish that they should not be considered because they involve a subject matter over which the undersigned has no jurisdiction.’” Id. at 257. But this was too restrictive and “to the extent attorney hours were reasonably spent in advancing Mr. Valdes’s interests in the workers’ compensation proceeding they should have been taken into account, even if they also helped in preparation of the criminal case.” Id. This Court vacated the JCC’s order denying recovery of expenses, inclusive of attorney’s fees, in the criminal matter because the expenses were inherently linked to the workers’ compensation case. Id. On remand, the JCC was instructed to consider the hours expended by claimant’s counsel for work related to the criminal matter but were nevertheless reasonably “incurred in and about the handling of the claimant[ ]’s rights, duties, and responsibilities under Chapter 440.” Id. at 258. Thus, the phrase “services performed in the course of pursing claims for workers’ compensation benefits” has never been limited to only those reimbursable expenses performed before a JCC in a workers’ compensation proceeding. Here, in the order on appeal, the JCC determined that Charlton and Lavoy compelled his denial of the reimbursement on the basis that such fees were only awardable to the extent they were incurred in the handling of the claimant’s rights under 8 chapter 440 and “representation of the claimant in proceedings before the JCC.” But this interpretation misconstrues the standard. Recoverable expenses, that may include attorney’s fees, are those services inherently linked to the workers’ compensation case and services required to pursue such benefits, even if not necessarily performed in a formal workers’ compensation proceeding. As in Charlton and Lavoy, a guardian was required for the injured worker to pursue his workers’ compensation claims under chapter 440. All workers’ compensation proceedings were suspended until a guardian had been appointed due to his incapacity—an incapacity causally related to the compensable accident. Although the establishment of guardianship must occur in the circuit court for jurisdictional reasons, the guardianship was required for the workers’ compensation case to proceed, and no evidence was introduced that any of the claimed reimbursable expenses were not inherently linked to the workers’ compensation case. To be clear, the JCC has no authority over the guardianship proceedings. A JCC lacks jurisdiction to handle the guardianship or to award fees in that separate proceeding. Florida guardianships proceed in the circuit court and are governed by Chapter 744, Florida Statutes. Only the circuit court can resolve disputes about the guardianship or determine what a reasonable fee is in that proceeding. Section 744.108(9) permits the E/C, as an interested person, to participate on a limited basis in the guardianship fee proceeding when the circuit court seeks to determine a reasonable fee. But after the circuit court determines a reasonable fee and costs within the guardianship proceeding, the JCC has authority to determine what portion of those reasonable guardianship expenses may be recoverable as inherently linked to the workers compensation proceeding. The JCC should limit the taxable expenses to those amounts necessitated by and reasonably attributed to the worker’s compensation benefit process. III. Conclusion The JCC satisfied his obligation under section 440.17 when he ordered pursuit of guardianship proceedings in a court of competent jurisdiction. The undisputed evidence establishes a causal relationship between the accident that caused the injured 9 worker’s traumatic brain injury and the resulting mental infirmity and the need for guardianship. Furthermore, the expenses for which Claimant seeks reimbursement were inherently linked to the handling of the ward’s rights, duties, and responsibilities under chapter 440. Accordingly, the order is set aside, and the case remanded to award reimbursement of the guardianship expenses and address the outstanding claim for attorney’s fees and costs related to litigation of the reimbursement before the JCC. SET ASIDE and REMANDED. KELSEY and LONG, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Michael J. Winer of Winer Law Group, Tampa, for Appellant. Rayford H. Taylor of Hall Booth Smith, P.C., Atlanta, GA, for Appellees. 10