FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D18-1990
_____________________________
LIBRADA GONZALEZ IZAGUIRRE,
Appellant,
v.
BEACH WALK
RESORT/TRAVELERS INSURANCE,
Appellees.
_____________________________
On appeal from an order of the Judge of Compensation Claims.
Geraldine B. Hogan, Judge.
Date of Accident: April 30, 2016.
May 16, 2019
PER CURIAM.
Izaguirre, a workers’ compensation claimant, appeals the
order denying benefits. The Judge of Compensation Claims
(“JCC”) denied benefits after striking Izaguirre’s independent
medical examiner (“IME”) report. As authority, the JCC relied on
section 440.13(5)(a), Florida Statutes (2015), which requires
parties selecting IMEs to notify all parties within fifteen days of
the examination. “Failure to timely provide such notification shall
preclude the requesting party from submitting the findings of such
IME in a proceeding before a [JCC].” § 440.13(5)(a), Fla. Stat.
(2015) (emphasis added.) Izaguirre concedes that she did not
provide timely notice, but she argues exclusion of the evidence
under this provision is directory, not mandatory. Thus, she argues
the JCC erred by failing to address the discretionary factors, such
as prejudice to the opposing party, which typically must be
considered whenever evidence is excluded based on untimely
disclosure. See, e.g., Med. Logistics, Inc. v. Marchines,
911 So. 2d
823, 824-25 (Fla. 1st DCA 2005).
We reject Izaguirre’s characterization of the exclusionary
language in section 440.13(5)(a), as merely directory. Based on its
plain and ordinary meaning, the word “shall” in a statute usually
has a mandatory connotation. See Steinbrecher v. Better Constr.
Co.,
587 So. 2d 492, 494 (Fla. 1st DCA 1991). And, where the use
of the word “shall” is accompanied by a penalty for failure to
comply, a reading of the statute “leads inevitably to the conclusion
that the provision is not amenable to an exercise of discretion.”
Id.
(holding penalty for late payment of compensation is mandatory
where statute states such penalty “shall be paid”); see also Palm
Springs General Hosp. v. Cabrera,
698 So. 2d 1352, 1356 (Fla. 1st
DCA 1997) (“The statutory language provides no support for the
view that the statute is directory only, or that evaluation by expert
medical advisors is to be left to the discretion of the judges of
compensation claims”). Thus, because the Claimant failed to
provide the statutorily required notice, the JCC was required to
exclude the IME testimony.
AFFIRMED.
LEWIS, WINSOR, and M.K. THOMAS, JJ., concur.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
2
Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, for
Appellant.
Steven H. Preston of Hicks, Porter, Ebenfeld & Stein, P.A.,
Miami, for Appellees.
3
