Baptiste v. Sunrise Community
47 FLW D1560
Employer/carrier prevailed in claim filed by claimant. Costs awarded against claimant which included one-half of a cancellation fee for the claimant's failure to appear at a scheduled Independent Medical Examination scheduled by the employer/carrier. The claimant actually showed up at the IME but brought with her, without prior notice, a videographer to record the examination, which she had the right to do. The IME doctor refused to examine the claimant because of the presence of the videographer and accordingly, the examination was cancelled and a non-appearance fee was charged. JCC determined that the claimant appearing at the IME with a videographer without notice constituted a constructive failure to appear for the IME and therefore costs were awarded for one-half of a "no show" fee under Section 440.34(3), Florida Statutes. On appeal, case reversed in regards to the order requiring the payment of one-half of the no show fee.
A JCC should consider the statewide uniform guidelines for taxation of costs in civil actions in determining the taxation of costs in a particular proceeding. But the guidelines are advisory and the JCC has broad discretion in determining the taxation of costs in a proceeding. No show fees can be deemed a part of costs but if a claimant can show good cause for failure to attend an IME, no sanctions are awarded. The JCC must also ensure that the cancellation fee was properly charged and the amount was appropriate under the circumstances.\
No show fees under Section 440.34(3), F.S., as a prevailing party cost. There is no provision in this statutory section for a constructive failure to appear for an IME and accordingly, assessing costs for a constructive failure to appear is not provided for under the statute. Under Florida Rule of Civil Procedure 1.360(a)(1)(A), there is a provision that if an examination is to be recorded or observed by others, advanced notice of such must be given. There is no corollary for this under the Workers' Compensation Rules or statutes. Court determined that it was error to award costs since the claimant actually did show up for the IME.