Florida Appellate Court Rules in Favor of Claimant in Independent Medical Examination Case

In a recent decision, the First District Court of Appeals in Florida issued an opinion in an appeal involving a cancellation fee charged by the Employer/Carrier’s (E/C) independent medical examiner (IME). According to the record, Claimant was required to attend the independent medical examination while wearing a mask by the E/C. The parties did not dispute that Claimant attended the examination while wearing a mask. However, the E/C stated that by bringing a videographer to record the examination without prior notice, causing the IME to refuse to conduct the examination while being filmed, Claimant became responsible for half of the IME cancelation fee under section 440.13(5)(d), Florida Statutes (2019). E/C’s claim states that this is due to the fact that Claimant’s actions amounted to a “constructive no-show” by behaving in a manner that caused the IME to cancel the examination.

The judge of compensation claims (JCC) agreed with the claims made by the E/C, finding the cancellation was entirely of Claimant’s making as she did not provide notice that she would bring a videographer. Subsequently, the JCC granted the E/C an “award of taxable costs of $900.00 for one half of a cancellation fee charged by the E/C’s IME” under section 440.13(5)(d).

The appellate decision acknowledges that Florida Rule of Civil Procedure 1.360(a)(1)(A) “requires that the person to be examined must advise if the examination is to be recorded or observed by others, and shall include, inter alia, the number of people attending and the method or methods of recording,” but points out that “no corollary for this exists in the workers’ compensation rules or statutes.” In fact, the appellate court decision highlights the JCC’s broad discretion to award costs in such cases, and states that “generally, if a claimant can show good cause for the failure to attend an IME, no sanctions are awarded.” The appellate opinion further states that “the JCC must also ensure that the cancellation fee was properly charged, and the amount was appropriate under the circumstances.” Finally, the appellate decision points out that section 440.13(5)(d) “provides that payment of half of the no show fee” attaches if “the employee fails to appear for the independent medical examination,” but makes no mention of the “constructive failure to appear” that the JCC cites to. Ultimately, the appellate opinion finds that Claimant should not be charged with paying half of the IME cancellation fee under the facts presented.

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