Opinion
No. 1D21-3736
07-20-2022
Lucianie Jean BAPTISTE, Appellant, v. SUNRISE COMMUNITY and FARA, A York Risk Services Co., Appellees.
Toni L. Villaverde, Coral Gables, for Appellant. Yunia DeMicco-Nadler, Boca Raton, for Appellees.
Toni L. Villaverde, Coral Gables, for Appellant.
Yunia DeMicco-Nadler, Boca Raton, for Appellees.
Per Curiam.
We review an order of the Judge of Compensation Claims (JCC) awarding the Employer/Carrier (E/C) taxable costs in the amount of $11,950.70. Claimant raises five issues on appeal. We affirm as to all but one without comment and reverse as to the JCC's award of taxable costs of $900.00 for one half of a cancellation fee charged by the E/C's independent medical examiner (IME), Dr. Rosabal.
Factual Background
Pursuant to section 440.34(3), Florida Statutes, the E/C sought $21,228.50 for costs incurred in successfully defending against several petitions for benefits. In addition, the E/C included a claim for reimbursement for one half of Dr. Rosabal's $1,800.00 cancellation fee. The JCC previously entered an order compelling Claimant's appearance at the examination with instructions that Claimant "shall attend the IME ... and shall wear a mask." The parties did not dispute that Claimant did appear with the required mask, but she also brought, without prior notice, a videographer to record the examination, which she had the right to do. See, e.g., U.S. Sec. Ins. Co. v. Cimino , 754 So. 2d 697 (Fla. 2000) (holding insured in personal injury protection action "entitled to have an attorney or videographer present at a physical" absent a valid reason for denial). Dr. Rosabal refused to conduct the examination with a videographer present and cancelled it. The E/C argued that Claimant's appearance with a videographer without notice amounted to a constructive no-show on Claimant's part and Claimant therefore was responsible for half the cancellation fee under section 440.13(5)(d), Florida Statutes (2019). The JCC agreed, finding the cancellation was entirely of Claimant's making as she did not provide notice that she would bring a videographer.
We note 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 no corollary for this exists in the workers’ compensation rules or statutes.
Discussion
The award of specific costs is reviewed by this court for abuse of discretion. See Punsky v. Clay Cnty. Bd. of Cnty. Comm ., 60 So. 3d 1088, 1092 (Fla. 1st DCA 2011). If resolution of an issue requires statutory interpretation, the review is de novo. Id.
Section 440.34(3), Florida Statutes (2019), states that:
If any party should prevail in any proceedings before a judge of compensation claims or court, there shall be taxed against the nonprevailing party the reasonable costs of such proceedings, not to include attorney's fees.
The award of all reasonable litigation costs is mandatory. Punsky , 60 So. 3d at 1093. A JCC should consider the Statewide Uniform Guidelines for Taxation of Costs in Civil Actions (guidelines) in determining the taxation of costs in a particular proceeding. Fla. Admin. Code R . 60Q-6.124(3)(e). But the guidelines are advisory, and the JCC has broad discretion in determining the taxation of costs in a proceeding. Nealy v. Fla. Dep't of Revenue, Div. of Risk Mgmt. , 171 So. 3d 201, 202 (Fla. 1st DCA 2015) (quoting In re Amendments to Unif. Guidelines for Tax'n of Costs , 915 So. 2d 612, 614 (Fla. 2005) ).
Notwithstanding the JCC's discretion to award costs under section 440.34(3), section 440.13(5)(d) specifies the circumstances in which a claimant may have to reimburse the carrier for a portion of an IME's cancellation fee. See, e.g. , S. Bakeries v. Cooper , 659 So. 2d 339, 340–41 (Fla. 1st DCA 1995). Generally, if a claimant can show good cause for the failure to attend an IME, no sanctions are awarded. See Delgado v. J.C. Concrete , 721 So. 2d 353, 355 (Fla. 1st DCA 1998). The JCC must also ensure that the cancellation fee was properly charged, and the amount was appropriate under the circumstances. Marton v. Fla. Hosp. Ormond Beach/Adventist Health Sys. , 98 So. 3d 754, 758–59 (Fla. 1st DCA 2012).
The JCC here awarded half the "no-show" fee under section 440.34(3) as a prevailing party cost, finding that Claimant's attending with the unannounced videographer amounted to a constructive failure to appear for the IME. But section 440.13(5)(d) ’s plain language provides that payment of half of the no show fee does not attach unless "the employee fails to appear for the independent medical examination." Nothing in the statute allows for "constructive" failure to appear. Here, because Claimant appeared for the examination in accordance with the JCC's order, she should not be charged with half of the cancellation fee under the facts presented. Neither the JCC nor the E/C cite any authority to support awarding, as prevailing party costs, a cancellation fee assessed by an IME physician who unilaterally cancels the IME examination because the claimant appeared with a videographer without prior notice of her intent to do so.
We therefore affirm in part, reverse in part, and remand to the JCC for proceedings consistent with this opinion. AFFIRMED in part, REVERSED and REMANDED in part.
Rowe, C.J., and Lewis and Osterhaus, JJ. concur.