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.

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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 statutorilyimposed notice requirements, and there was no evidence to 
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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.