Lee Greenfield v. Tallahassee Police Dept. and City of Tallahassee , 243 So. 3d 1050 ( 2018 )

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D17-3311
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LEE GREENFIELD,
Appellant,
v.
TALLAHASSEE POLICE
DEPARTMENT and CITY OF
TALLAHASSEE RISK
MANAGEMENT DEPARTMENT,
Appellees.
_____________________________
On appeal from an order of the Judge of Compensation Claims.
John J. Lazzara, Judge.
Date of Accident: March 27, 2011.
April 20, 2018
PER CURIAM.
Claimant 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.
Paragraphs 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 paragraph (c).”
Here, 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.
Following 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.
After 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.
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Because 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).
Paragraph 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.
Here, 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 portion of the order awarding 50% of the no-show
fee is reversed.
Claimant also challenges the award as being excessive. “The
award of specific costs is reviewed by this court for abuse of
discretion.” Marton v. Fla. Hosp. Ormond Beach, 98 So. 3d 754,
756 (Fla. 1st DCA 2012). In addition to the no-show fee, the JCC
awarded the E/C the cost charged by Dr. Loeb for a review of the
medical records.
Under no scenario was the cost for the records review
awardable. Because it was not part of the no-show fee, it was not
awardable on that basis. See id. at 758-59 (explaining that it was
improper to include charge such as “[r]eserved time fee for updated
IME” in no-show fee). If the charge was not associated with the
no-show fee, it was not otherwise awardable as either a part of the
IME exam or as part of any deposition preparation because those
events never took place. Furthermore, the E/C did not establish
that Dr. Loeb’s testimony could be submitted into evidence at the
upcoming hearing. Thus, the cost would not be one “necessary to
maintain the claim.” Id. at 757.
Accordingly, we REVERSE and REMAND for entry of an order
awarding the E/C prevailing party costs of $2,113.33.
WOLF, BILBREY, and KELSEY, 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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Paul M. Anderson of Anderson & Hart, P.A., Tallahassee, for
Appellant.
Christopher J. Dubois and Mary E. Cruickshank of DuBois &
Cruickshank, P.A., Tallahassee, for Appellees.
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