Case Law Update – May 21, 2019

TIMELY NOTIFICATION OF CLAIMANT’S IME SELECTION

Librada Gonzalez Izaguirre v. Beach Walk Resort/Travelers Insurance, No. 1D18-1990 (Fla 1st DCA May 16, 2019)

In this case, the claimant chose her own IME physician but failed to notify the E/C of the identity
of her selected physician within 15 days of the examination. Florida Statute 440.13(5)(a) requires
parties selecting an IME to notify all parties within 15 days after the date that the IME is to take
place. The statute specifically indicates “failure to timely provide such notification shall preclude
the requesting party from submitting the findings of such IME in a proceeding before a JCC.”

Relying on the above-cited statute, former JCC Geraldine Hogan struck the claimant’s IME
report. The claimant appealed arguing that 440.13(5)(a) was merely “directory” and not
mandatory. As a result, she argued 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. The First DCA rejected the claimant’s characterization of
the exclusionary language in the statute as merely directory because the statute uses the word
“shall”. The Appellate Court held that the statutory time limitation was mandatory. As a result,
because the claimant failed to provide the statutorily required notice, the JCC was required to
exclude the IME testimony.

Practical Application

This case makes it clear that whenever the claimant chooses their own IME physician they mustnotify all other parties of the identity of the physician within 15 days after the IME takes place. If the claimant fails to comply with this requirement, their IME physician will not be permitted to testify and the IME report will not be admissible in proceedings before the JCC.

Footnote: This brand new decision is subject to the filing of a motion for rehearing and the outcome of any such rehearing. However, since it was a PER CURIAM decision and under the circumstances of this case, it is extremely unlikely the court will change this opinion and thus it will become final and the law.

Please feel free to contact any of our workers’ compensation attorneys listed below if you wish to discuss this case and its application to your claims. You may reach us at the telephone numbers or email addresses listed below:

Fort Lauderdale/East Coast Office: (954) 462-4304

Walter C. Wyatt, Partner – ext. 218

wcwyatt@fla-esq.com

Robert M. Potter, III, Partner – ext. 222

rmpotter@fla-esq.com

Brian G. Winger, Senior Associate – ext. 220

bgwinger@fla-esq.com

St. Petersburg/West Coast Office: (727) 322-1739

Joseph A. Bayliss, Partner – ext. 201

jbayliss@fla-esq.com

Jerome B. Blevins, Partner – ext. 205

jblevins@fla-esq.com