Kimberly A. Fox v. Sarasota County School Board, and Commercial Risk Management

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D2023-3093

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KIMBERLY A. FOX,

Appellant,

v.

SARASOTA COUNTY SCHOOL

BOARD, and COMMERCIAL RISK

MANAGEMENT,

Appellees.

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On appeal from the Office of the Judges of Compensation Claims.

Erik B. Grindal, Judge.

Date of Accident: April 24, 2012.

June 25, 2025

PER CURIAM.

Claimant appeals an order of the Judge of Compensation

Claims denying a fee stipulation after settlement. Although we

find no error in the denial of Claimant’s motion to disqualify the

JCC, we find error as to the rulings on the Employer/Carrier paid

attorney’s fees and costs.

After the parties reached a $114,900 settlement for claims

from four dates of accident, they moved for approval of the

Claimant paid attorney’s fees. These fees amounted to $12,240, to

be paid out of the total settlement. No Claimant paid costs were

included. The JCC approved payment of these fees the same day.

Later that same day, the parties asked the JCC to approve

their stipulation for E/C paid Claimant’s attorney fees of

$60,308.72 and E/C paid Claimant’s costs of $24,691.28. The JCC

declined to approve the stipulation. Claimant then brought this

appeal.

JCCs have subject matter jurisdiction over E/C paid fees

because section 440.34(1), Florida Statutes, states that attorney’s

fees “may not be paid for a claimant in connection with any

proceedings arising under this chapter, unless approved by the

[JCC] or court having jurisdiction over such proceedings.” See

Delgado v. City Concrete Sys., Inc., 220 So. 3d 529, 530 (Fla. 1st

DCA 2017) (applying § 440.34(1) where E/C stipulated to pay the

fees for the claimant’s attorney). But where, as here, a stipulation

exists without evidence of “fraud, overreaching,

misrepresentation, or some other basis that would void the

agreement,” a JCC is obligated to follow the stipulation. Salzman

v. Reyes, 198 So. 3d 1068, 1070 (Fla. 1st DCA 2016) (citing Sapp v.

Berman Bros., 884 So. 2d 1080 (Fla. 1st DCA 2004)).

To reconcile this tension, we now explain: a JCC’s review of a

side stipulation for E/C paid fees extends only to the fee amount.

See Brady v. Cypress Commc’n of S. Fla., 169 So. 3d 1283, 1284

(Fla. 1st DCA 2015). It follows then that the JCC erred here when

he denied E/C paid fee entitlement. Id. at 1285. Although the JCC

found “no factual or legal basis for concluding that [Claimant’s

attorney] is entitled to payment of attorney’s fees and taxable costs

by the employer/carrier under the facts presented here,” that

finding is insufficient under Salzman. Instead, Salzman expressly

requires “some basis beyond a finding that Appellant did not

present sufficient evidence to establish a stipulated fact.” 198 So.

3d at 1070.

In contrast to fees, JCCs have no jurisdiction at all over E/C-

paid claimant’s costs. See Gobel v. Am. Airlines, 177 So. 3d 1289,

1290 (Fla. 1st DCA 2015) (discussing application of rules of

workers’ compensation procedure to chapter 440). Therefore, the

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JCC also erred by denying approval of the costs portion of this side

stip.

SET ASIDE.

OSTERHAUS, C.J., and ROBERTS and BILBREY, JJ., concur.

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Not final until disposition of any timely and

authorized motion under Fla. R. App. P. 9.330 or

9.331.

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Bradley G. Smith and Nicolette E. Tsambis of Smith, Feddeler,

Smith, P.A., Lakeland, for Appellant.

Ben Cristal of Cristal Law Group, Clearwater, for Appellees.

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