final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
of Accident: March 27, 2011.
appeal from an order of the Judge of Compensation Claims.
John J. Lazzara, Judge.
M. Anderson of Anderson & Hart, P.A., Tallahassee, for
Christopher J. Dubois and Mary E. Cruickshank of DuBois &
Cruickshank, P.A., Tallahassee, for Appellees.
argues that the Judge of Compensation Claims (JCC) erred in
assessing a no-show fee for Claimant's failure to appear
for an independent medical examination (IME) scheduled by the
Employer/Carrier (E/C) and that the awarded fee was
excessive. Because the E/C's notice to Claimant and his
attorney of the scheduled IME was not in compliance with the
statutorily-imposed notice requirements, and there was no
evidence to support the $1, 000 award for the review of
records, we agree with Claimant and reverse the awards.
440.13(5)(c)-(d), Florida Statutes (2010), require the E/C to
"confirm the scheduling agreement in writing with the
claimant and the claimant's counsel, if any, at least 7
days before the date upon which the [IME] is scheduled to
occur, " and no cancellation fee will be imposed if the
E/C "fails to timely provide to the employee a written
confirmation of the date of the examination pursuant to
Claimant's attorney was notified on October 14, 2015, of
the IME scheduled for October 19, 2015, less than seven days
before the scheduled IME. There is no evidence that the E/C
notified Claimant directly. Claimant's attorney replied
to the E/C on October 16, explaining that because there was
no way that the IME could be listed as a witness for the
upcoming hearing, there was no purpose for Claimant to attend
the IME. Claimant's attorney suggested that the exam be
cancelled so as not to "risk losing any
prepayment." Claimant did not attend the exam.
a hearing on the E/C's motion seeking an award of a
no-show fee, the JCC entered an order awarding the fee and
directed the E/C to ascertain from the doctor "what the
no-show fee would have been if the [sic] Dr. Loeb was given
cancellation notice on October 16, 2015, " as that was
to be the fee awarded in an addendum order. The E/C filed a
notice with the JCC advising that the no-show fee would have
been $1, 750 with one business day's notice. No addendum
order was entered.
successfully defending a claim for a medical apparatus, the
E/C filed a motion to tax prevailing party costs that
included a request for reimbursement of the costs associated
with the failed IME. Claimant asserted that the E/C was
precluded from recovering a no-show fee because they did not
give Claimant and his counsel timely notice of the upcoming
exam. In the course of the hearing, the JCC described the
notice requirement as a "technicality." The JCC
awarded a no-show fee of $1, 750 and a $1, 000 charge for a
records review, for a total of $2, 750, bringing the total
costs award to $4, 863.33. Claimant does not dispute that the
remaining costs awarded - $2, 113.33 - are due the E/C.
resolution of the E/C's entitlement to a no-show fee
requires statutory construction, our review is de novo.
See Lombardi v. S. Wine & Spirits, 890 So.2d
1128, 1129 (Fla. 1st DCA 2004). In construing a statute,
courts must first look to its plain language. See Perez
v. Rooms To Go, 997 So.2d 511, 512 (Fla. 1st DCA 2008).
440.13(5)(c) specifically requires that the carrier provide
an employee and the employee's attorney, if any,
seven days' notice - in writing - of an IME.
the E/C's notice of the IME did not conform with the
statutory notice required by paragraph 440.13(5)(c).
Therefore, Claimant does not owe the E/C 50% of the no-show
fee. Accordingly, that ...