Florida/Georgia Personal Injury & Workers Compensation

...f Industrial Claims. The sole issue which is before this Court for review is whether or not a check issued to replace a lost or misplaced compensation check can act to toll the statute of limitations for modification of orders pursuant to Fla. Stat. § 440.28, F.S.A....

...tment. In Jones v. Ludman Corp., 190 So.2d 760 (Fla. 1966), a claim for compensation was made more than two years following the last payment of compensation pursuant to an award, the Court held the claim barred by the limitations period specified in Section 440.28, Florida Statutes....

...1965), the Court held that payment of Workmen's Compensation benefits on a voluntary basis after the Statute of Limitations had run was a mere gratuity and did not waive the Statute of Limitations. "The Supreme Court of this State has interpreted, as outlined above, Chapter 440.28 on the Statute of Limitations regarding further claims under the Workmen's Compensation Law....

...kery of any attempt by the Legislature to effect a two-year limitations period. As was determined by this Court in Dean v. McLeod, Fla., 270 So.2d 726, filed November 22, 1972, it is not the province of this Court to redefine the terms of Fla. Stat. § 440.28, F.S.A., so as to, in effect, repeal the statute of limitations in the section....

...the original hearing, and the issue was therefore res judicata. Further, the deputy ruled, the claimant's work search subsequent to the original order was not a proper predicate for a change of condition as contemplated by the modification statute, Section 440.28, Florida Statutes....

...[2] He then filed his petition for modification, and presented his work search evidence at a hearing on April 27, 1981. Following this hearing, the order appealed was entered. There can be little doubt that a modification based upon a change in earning capacity is contemplated by the statutes. Section 440.28, Florida Statutes....

...This was made clear by the Florida Industrial Commission in DuPont Plaza Hotel v. Schiffman, IRC Order 2-2326 (1973), cert. denied, 291 So.2d 5 (Fla. 1974), overruling the Commission's decision in Gomez v. Panelfab Products, Inc., 6 FCR 409 (1971), which had declared that a change in condition pursuant to Section 440.28 "refers only to physical condition and that wage earning capacity loss cannot be construed alone as grounds for modification." Larson's Workmen's Compensation Law, Volume III, § 81.31 (quoted in Dupont Plaza, supra), points out that "...

...[6] If the evidence shows that the claimant is in fact unemployed, then the deputy may validly assume, absent evidence to the contrary, that this status will be remedied in the near future. However, we find no basis in logic or reason to prevent a claimant from proving, within the two year period allowed by this statute, Section 440.28, that although at the initial hearing he was justifiably presumed to have no claim based on loss of earning capacity, at a later time his earning capacity was nonexistent or impaired to a degree which would warrant an increase in his disability payments....

...In these circumstances, to hold that Petitioner is not entitled to modification of the earlier determination so as to conform his compensation award to the existing realities of his disability would unduly thwart the liberal purposes sought to be accomplished by F.S. Section 440.28, F.S.A....

...A careful reading of the Sauder opinion, however, reveals that these comments of the court were directed to modification attempts based upon mistake of fact, not change in condition. The Sauder opinion also contains the observation, in reference to modifications under Section 440.28 based upon mistake in a determination of a fact or change in condition (156 So.2d at 165): As we said on several occasions, it is not sufficient to support a modification under either provision by merely producing cumulative evidence....

...Petitioners, who were the employer and insurance carrier in a workmen's compensation proceeding, seek review of an order of the Florida Industrial Commission affirming an award in favor of respondent Nelson, the employee. The primary question for determination is whether Chapter 28241, Laws of Florida 1953, which amended Section 440.28, Florida Statutes, F.S.A., by extending from one to two years after date of last payment of compensation the period of time within which an award could be modified, is applicable to a claim pending at the time of the passage of the 1953 Act....

...on the basis of a finding of permanent partial disability of 12 1/2 percent of the body as a whole. The award was paid in a lump sum on December 17, 1952. On July 1, 1953, Chapter 28241, Laws of Florida 1953, became effective. This Act *121 amended Section 440.28, Florida Statutes, F.S.A., by increasing the period during which an award might be modified from one year from the date of last payment of compensation to two years from the same date....

...ed for an additional year and that the 1953 Act was applicable to his situation. In holding that the Deputy and the full Commission ruled correctly we point out that the 1953 Act took effect before the expiration of the one-year period allowed under Section 440.28, Florida Statutes, F.S.A., before the amendment....

...540, 15 So.2d 256. Respondents contend that the order of the Deputy and the full Commission is sustained by Corbett v. General Engineering & Machinery Co., 160 Fla. 879, 37 So.2d 161. The Daytona Beach Boat Works case did deal with a 1941 amendment to Section 440.28, Florida Statutes, F.S.A....

...order of a deputy commissioner who had modified a prior compensation order. We must decide whether the record sustains the conclusion of the deputy to the effect that the original order was entered because of a "mistake in a determination of fact." Section 440.28, Florida Statutes, F.S.A....

...Funt and the report which was not in evidence at the initial hearing sustained the conclusion of the deputy that he was mistaken in making his original order. The respondents contend that subsequent evidence was merely cumulative and that the deputy simply changed his mind. The modification petition was filed pursuant to Section 440.28, Florida Statutes, F.S.A....

...Nevertheless, the orders of this commission are quasi judicial in nature and in the absence of some statutory exception they are governed by the same rules regarding res judicata or estoppel as applied to the judgments or decrees of courts. Except as to the extent that modification is permitted by Section 440.28, supra, orders of the Industrial Commission and its deputies become final within the time provided by Section 440.25, Florida Statutes, F.S.A....

...We are compelled to agree with the conclusion reached by the full commission that the record in the second proceeding is entirely devoid of any evidentiary support for the deputy's order holding that there was a mistake in the original factual determination as required by the provisions of Section 440.28, supra....

...atment by Sister Kenny Institute. The failure of Cathedral Clinic to produce the desired results and claimant's subsequent psychological problems clearly represent a change in condition sufficient to allow modification of the prior order pursuant to section 440.28, Florida Statutes....

...In his order dismissing claimant's petition the deputy concluded: (1) that he lacked jurisdiction, and (2) that aside from the question of jurisdiction, evidence which is merely cumulative and does no more than add to or controvert that previously heard is not sufficient to reopen a claim under § 440.28....

...g the deputy's order on the authority of Sonny Boy's Fruit Co. v. Compton. [5] It is argued that the principle set forth in that case is applicable only to claims for "additional compensation" based upon a change in condition. The provisions of F.S. § 440.28, F.S.A., are strikingly similar to those of the Act of Congress entitled the Longshoremen's and Harbor Workers' Compensation Act....

...ence, make a new award. [8] Our Supreme Court has given its approval to the foregoing principles controlling claims seeking modification by reason of a mistake in a determination of fact, [9] as well as by reason of a change of conditions. [10] F.S. § 440.28, F.S.A., was not intended as affording a claimant or employer an opportunity to relitigate an identical issue which had been previously determined solely upon an increase in the quantum and probative force of evidence in support of a conclusion contrary to that reached by prior determination....

..."If a person who is entitled to compensation under this chapter is mentally incompetent or a minor, the provisions of subsection (1) shall not be applicable so long as such person has no guardian or other authorized representative, * * *." [3] Hall v. Florida Ind. Comm., Fla. 1955, 81 So.2d 808. [4] F.S. § 440.28, F.S.A....

...If at some time in the future it can be shown that there has been a change in circumstances so that the claimant is no longer permanently and totally disabled and is capable of obtaining gainful employment, the respondents will, of course, have a remedy by way of Section 440.28, F.S.A....

...From this point, the judge apparently then reasoned that the 1989 claim was effectively a petition to modify the 1988 order, and that such modification could only be granted upon proof of "a change in condition" or "a mistake in a determination of fact" under Section 440.28, Florida Statutes. We disagree with this reasoning. Except to the extent modification is permitted by Section 440.28, compensation orders are governed by the same principles of res judicata, estoppel by judgment, and law of the case as are judgments of a court. Hodges v. State Road Dep't, 171 So.2d 523 (Fla. 1965); Boston v. Budget Luxury Inns, 474 So.2d 355 (Fla. 1st DCA 1985) (collecting cases). Section 440.28 merely serves to allow modification, upon specified conditions, of compensation orders which would otherwise bar subsequent claims for workers' compensation benefits under principles of res judicata, estoppel by judgment, or law of the case. Therefore, the existence of the requisites for application of one of *375 these doctrines must be present before it becomes necessary for a claimant to resort to Section 440.28 for relief....

...This is so because no question previously decided in the case precluded the claim. Because res judicata, estoppel by judgment, and law of the case were not applicable to bar the 1989 claim for an increase in attendant care benefits, the claim should not have been treated as a petition for modification under Section 440.28....

...JOANOS, J., concurs. WENTWORTH, Senior Judge, concurs with written opinion. WENTWORTH, Senior Judge, concurring. I agree with the majority's disposition of all issues, including the pertinence of general res judicata principles and the inapplicability of section 440.28, Florida Statutes, to the present claim for attendant care, because the order for such benefits at an earlier point did not determine a factual or legal issue which is dispositive of the current claim on the evidence in this case. I would emphasize the fact specific nature of any inquiry as to when a prior order granting or denying such care, or other statutory benefits, may implicate section 440.28, *377 when the current and prior claims involve an identity of issues.

...ERVIN, Judge. In this workers' compensation action, the appellants assign four points as requiring reversal. Because we agree with the appellants on their first point that the deputy lacked jurisdiction to modify the final compensation order pursuant to Section 440.28, Florida Statutes (1975), we need not address the remaining points raised....

...ntial change in her condition as to medical problems and treatment, and requesting PPD benefits. After conducting a hearing on this claim, the deputy commissioner held that both carriers were estopped from asserting the two-year limitation period in Section 440.28 because they failed to pay the claimant TTD benefits mandated by the original, continuing order for the six-day period that the claimant was hospitalized in August, 1977, and that this failure tolled the running of the statute of limitations....

...MMI, or July 13, 1976, (2) to provide continuing medical benefits as needed, and (3) to pay claimant's costs and attorney's fees. We agree with the appellants that the deputy improperly estopped the appellants from asserting the limitation period in Section 440.28....

...This argument, however, ignores Mansell v. Mulberry Construction Co., 196 So.2d 436 (Fla. 1967), holding that remedial treatment provided by an e/c should not be considered a "payment of compensation" so as to toll the running of the limitation period in Section 440.28....

...)(b), stating that a claim may be filed within two years after the last remedial attention furnished by the e/c. Here, the claimant's petition to modify, as it relates to a requested change in compensation benefits, was governed by the provisions of Section 440.28 — not by Section 440.13(3)(b), Florida Statutes (1975)....

...uted evidence that American mailed the checks to claimant's counsel on June 10, 1977. Proof of the carrier's mailing of disability checks to a claimant constitutes proof of payment sufficient to start the running of the limitation period provided in Section 440.28....

...It is undisputed that Knight had worked in the job earning comparable annual salaries for virtually the entire period the City had been paying PTD benefits. Knight filed a claim for resumption of his PTD benefit and, on 16 September 1985, the City filed the instant petition for modification pursuant to Section 440.28, Florida Statutes (1985), alleging that Knight had reestablished a wage-earning capacity and was no longer entitled to PTD....

...A carrier cannot unilaterally modify an order so as to oust the circuit court from its jurisdiction to enforce the order and a claimant is entitled to have such order enforced until the order has been modified by the deputy commissioner pursuant to application for modification pursuant to Section 440.28....

...temporary total disability. * * *". Therefore, as long as the order remains outstanding, it would be permissible for the carrier to petition to be relieved of its obligations under the order because of the happening of the condition subsequent. See § 440.28, Fla....

...was justified on the basis of a change in condition. We agree with the Full Commission that the record fails to support a finding of a mistake in the determination of a fact in the initial compensation order. In order to support a modification under Section 440.28, Florida Statutes, F.S.A., on the ground of the mistake in the determination of a fact, a claimant has the burden of showing that the mistake was one committed by the deputy and was not merely an erroneous conclusion formed by his own witnesses....

...to be the subject of proof. Actually, the ultimate holding of that decision was that a mistake had not there been established. The language illustrating a situation which justifies modification apparently *165 was directed to the broad provisions of Section 440.28, supra, without intending to define the type of error to support a modification under the mistake provision. We think it appropriate to emphasize that under Section 440.28, supra, modification can be accomplished, (1) if the deputy makes a mistake in the determination of a fact or, (2) if there is a change in condition, either for better or worse....

...t ripe for decision because claimant might be helped by treatment at the Pain Clinic and thus, left this issue open for future decision. These findings were not appealed by claimant and became the law of the case, subject to modification pursuant to § 440.28, Fla....

...dents. On January 5, 1981, he filed a claim for psychiatric treatment. The employer/carrier defended on the ground that the claim for psychiatric attention filed subsequent to the 1980 order must be brought by way of a petition to modify pursuant to section 440.28, Florida Statutes (1977)....

...We recognize that in workers' compensation cases rules are relaxed. Nevertheless, we agree with the deputy commissioner that when a date of maximum medical improvement has been established and permanent disability awarded, additional claims for benefits and medical attention must be made by way of a 440.28 petition for modification....

...tionship between these injuries and the industrial accident, established the law of the case and that, therefore, it was unnecessary to consider the merits of the claim. It is from this order of reversal that this petition for certiorari is brought. Section 440.28, Florida Statutes, reads in pertinent part as follows: "......

...In the original 1957 hearing the deputy commissioner found both the first and second industrial employers liable to furnish remedial surgery and hospital care as required to alleviate the disability to claimant's right knee. Thereafter, in 1959 claimant applied for modification of the compensation order under Section 440.28, Florida Statutes, supra, the basis being a mistake in determination of fact in that claimant's left knee was in need of surgery....

...original testimony, which injuries could not have been discovered by use of medical technology available to the treating physician at the time of the original examination. In no event should this time period exceed the two-year limitation imposed by Section 440.28, Florida Statutes; we feel this conforms to the legislative intent....

...le injuries to be suffered”). 11  The decision by the Florida district court does not moot the merits of this appeal as Florida law provides for modification of a JCC order. Under Fla. Stat. § 440.28 (1994), at any time prior to two years after the date of the last payment of compensation made pursuant to the compensation order a party seeks to modify, on the ground of a change in condition or because of a mistake in a determination...

...rmined later and additional fees awarded, and in Boden v. City of Hialeah, 132 So.2d 160 (Fla. 1961), the deputy reserved jurisdiction to later determine the question of permanent partial disability and this Court held as against the contention that § 440.28 providing for modification within one year after the entry of the order was the only applicable method which could be used in this instance that in fact § 440.28 was inapplicable since the reservation of jurisdiction on the part of the deputy was for the purpose of determining an issue not then under consideration, i.e., the degree of permanent partial disability. Such issue was not based upon a change in condition or mistake of fact and was not subject to the conditions which would allow § 440.28 to come into play....

...not achieve finality *107 and is therefore not subject to the limitations on reopening applicable to final awards. To summarize, on those issues which either have not matured or on those issues which are not subject to modification provided by F.S. § 440.28, F.S.A., the deputy may reserve jurisdiction for later determination....

...ida Rules of Appellate Procedure. Upon consideration of the revised opinion set forth herein, a majority of the court voted to dissolve en banc. Emmett Massie appeals a workers' compensation order denying his application for modification pursuant to section 440.28, Florida Statutes (1983)....

...*967 463 So.2d at 384 (emphasis added). This court denied Massie's motion for rehearing, and the supreme court denied review, 472 So.2d 1181 (Fla. 1985). On August 19, 1985, claimant timely filed an application for modification of the February 1984 order pursuant to section 440.28, which authorizes modification "on the ground of a change in condition or because of a mistake in a determination of fact." Claimant alleged that there had been a change in his condition and, alternatively, that the deputy commissioner...

...t. [2] It is apparent that the deputy commissioner denied modification for a mistake in the determination of fact based on his belief that his previous ruling, having been affirmed by this court, was binding on him and could not be relitigated under section 440.28....

...inding. Because the expert's testimony was misconstrued by this court, however, the erroneous decision in affirming the deputy commissioner's order established the "law of the case." We must address, therefore, whether the modification provisions in section 440.28 are available to correct a mistake of fact such as this (the absence of any evidence to support the finding of fact), and whether the correction can be made by the deputy commissioner or must be made by this court. Were we now writing on a clean slate, we would not hesitate to reverse with a short opinion and remand for further consideration of claimant's application for modification pursuant to section 440.28 in light of Pappas's clarification of his original testimony, because this would serve to avoid a manifest injustice and result in a decision based on an accurate as opposed to a mistaken determination of the facts. However, a number of appellate court decisions construing and applying the mistake of fact provision in section 440.28 appear to give some support to the deputy commissioner's ruling to deny modification under that section. Therefore, we first focus upon the meaning of the statutory language in section 440.28 and whether such decisions preclude the application of that section in the circumstances of this case....

...a mistake in a determination of fact." Ch. 20672, Laws of Fla. (1941). The original one-year time limitation was changed to two years in 1953. Ch. 28241, Laws of Fla. (1953). Since 1953 the modification provision has remained substantially intact in section 440.28, with only minor modifications not relevant to this discussion....

...at 255-56, 92 S.Ct. at 406-07. Accordingly, despite the strict limitations on modification for mistake of fact that had been repeatedly imposed by lower federal courts for many years (and which were consistent with the limitations imposed by Florida courts under section 440.28), the Supreme Court gave the statutory language a literal but broad interpretation to permit modification upon demonstration of a mistake in a determination of fact without limitation on the manner of proof of the mistake or the scope...

...deral courts to the extent such construction is harmonious with the spirit and policy of the *973 Florida legislation on the subject. Kidd v. City of Jacksonville, 97 Fla. 297, 120 So. 556 (1929). An interpretation of the mistake of fact language in section 440.28 which accords to deputy commissioners a "broad discretion" similar to that accorded under the Longshoreman's Act by the U.S....

...As is true of the federal statute, nothing in the history of the Florida amendment adding the mistake of fact language and nothing in the statute itself remotely suggests a legislative purpose to drastically limit its application to enforce finality of decision. The plain language of section 440.28, on its face, simply does not appear to be susceptible to an interpretation requiring principles of finality to prevail over a conceded mistake of fact, and clearly the United States Supreme Court's construction of the statutory langua...

...A careful reading of the Florida decisions on modification for mistake in a determination of fact leaves one in considerable doubt as to what the statutory language really means, and how one can ever obtain modification for mistake of fact. The decisions state that section 440.28 cannot be used to obtain modification by (a) relitigating the issue "solely upon an increase in the quantum and probative force of the evidence," Southern Bell, 419 So.2d at 362, (b) relying on "cumulative evidence which merely controv...

...lack of competent substantial evidence in the record to support his findings of fact leading to a denial of compensability. If, therefore, there is any statutory basis at all for modifying a final order for a mistake in a determination of fact under section 440.28, most assuredly it must exist when, upon consideration of a timely motion for modification, the moving party demonstrates and the deputy commissioner concedes the complete absence of competent evidence to support the alleged mistake of fact....

...n that the record evidence supported the deputy's findings of fact. This court's decision became the law of the case, thus raising some question as to whether the deputy commissioner had any authority to subsequently modify that decision pursuant to section 440.28....

...There is no doubt that this court, under these principles, may again consider its prior decision on this appeal. As already discussed, the deputy commissioner had jurisdiction to reconsider the issue here presented on the motion for modification pursuant to section 440.28....

...claimant's job exposed him to stress or strain greater than the general public under the standard discussed hereinabove. Therefore, we hold that the deputy commissioner, being presented with a legally sufficient petition for modification pursuant to section 440.28 based on a complete absence of evidence to support the finding of fact in the prior order (which absence of evidence is now conceded by the deputy commissioner), erred in refusing to consider modification pursuant to section 440.28 for a mistake in the determination of fact because that section provides an exception to the doctrines of res judicata and law of the case based on the particular facts of this case....

...decision. We simply hold that in cases in which there is a complete absence of any competent, substantial evidence in the record to support an earlier denial of a claim of compensability, the "mistake in a determination of fact" language provided in Section 440.28, Florida Statutes, requires the judge of compensation claims, once a timely motion for modification is filed, to order modification on such ground....

..., because we have not passed on the question that would be appropriate for certification. See Revitz v. Baya, 355 So.2d 1170 (Fla. 1977). Therefore, under the circumstances, any meaningful attempt to place a construction on the pertinent language of section 440.28, consistent with the plain meaning of the statute, must await future resolution by the Florida Supreme Court if a case arises in which, unlike the present case, some evidence exists supporting an earlier compensation order....

...This clarification does not, therefore, alter the premise for our opinion nor require a different result. With the foregoing clarification, we adhere to our decision holding that the deputy commissioner was presented with a legally sufficient motion for modification pursuant to section 440.28 based on a mistake in the determination of fact, and that this court's decision on the prior appeal was likewise predicated upon an erroneous factual premise that should not continue to control the rights of the parties....

...this became abundantly manifest at the modification hearing, and that the deputy admitted his mistake of fact was based upon an erroneous assumption. Justice Drew concluded that this was exactly the type of situation contemplated by the provision in section 440.28: "The purpose of the modification provision would surely be thwarted if a deputy commissioner is to be prevented by a strained construction of the law from correcting an obvious injustice on clear and convincing evidence within the period the statute provides for such purpose." 124 So.2d at 870-71....

...oyer to pay certain medical bills related to claimant's hemorrhoidectomy performed June 19, 1980, based upon the deputy's finding that claimant had suffered a change in condition. We reverse. Except as to the extent that modification is permitted by Section 440.28, Florida Statutes (1978), deputies' orders are governed by the principles of res judicata or estoppel. Power v. Joseph G. Moretti, Inc., 120 So.2d 443 (Fla. 1960). It is well-settled that the modification procedures set forth in Section 440.28 were not intended as affording a claimant an opportunity to relitigate an identical issue which had been previously determined, based solely upon an increase in the quantum and probative force of evidence in support of a conclusion contrary to that reached by prior determination....

...The agreement limits rights to take an appeal of a final arbitration order to those allowed by section 682.20, Florida Statutes (1985), while no such limits apply to appeals from final orders of judges of compensation claims. 8. The agreement precludes any opportunity to modify the final award of an arbitrator, while section 440.28, Florida Statutes, contemplates modifying final awards of judges of compensation claims in appropriate cases....

...A subsequent wage-loss claim heard in October, 1981, resulted in an order awarding the claimant wage-loss benefits, the order expressly finding that the accident resulted in permanent impairment. The E/C did not appeal that order. Except to the extent modification is permitted by Section 440.28, Florida Statutes, deputies' compensation orders are governed by the same principles of res judicata and estoppel as are applied to judgments of courts....

...such change in condition. The deputy's order, after ruling that the claimant need not again prove permanent impairment, then construed the E/C's notice to controvert as a petition for modification on the grounds of a change in condition pursuant to Section 440.28, Florida Statutes....

...Smith, who, based on a reasonable degree of medical probability, found Snead's condition had worsened and reassessed her anatomical impairment rating increasing it to ten percent (10%) permanent partial disability. Snead then applied for a modification pursuant to § 440.28, Florida Statutes (1979)....

...r, we find the 1978 deputy's order to be res judicata in making no award for the item claimed. Florida's Workers' Compensation Law provides a mechanism for re-opening an adjudicated claim if there has been a change of condition or a mistake of fact. Section 440.28, Florida Statutes....

...ight of the employee under Section 440.19(1) of the Act to file a claim for permanent partial disability `within two years after the date of the last payment' of compensation made without an award, thereby relegating the employee to the procedure of Section 440.28 in the event he decided to claim additional compensation, a procedure limited to cases involving a change in condition or a mistake in a determination of fact....

...barred unless a claim therefor is filed within two years after the date of the last payment. If it were deemed that in a broad sense all the compensation paid to the employee herein was pursuant to the compensation order of September 24, 1953, under Section 440.28 of the Act the employee cannot claim further compensation unless she does so `prior to two years after the date of the last payment of compensation'....

...remedial treatment furnished by the employer, or after the date of the last payment of compensation. "The opinion in Superior Home Builders v. Moss, supra, is not applicable as it was limited to holding that the then one year limitation provided in Section 440.28 of the Act applied only where an employee sought modification of an award....

...arrier has discharged its obligation to the claimant in full, the claimant may file a claim for additional compensation within the two-year limitation period prescribed by Section 440.19, Fla. Stat. 1953, F.S.A., and is not required to proceed under Section 440.28, Fla....

...We reverse the appealed order of modification awarding claimant 35% permanent partial disability benefits because, contrary to the deputy commissioner's findings, there was no mistake in the determination of fact and no change in claimant's condition since the previous order of October 5, 1978. Section 440.28, Florida Statutes (1977)....

...The Deputy Commissioner's finding that Davis reached maximum medical improvement on August 10, 1978, with no permanent disability, therefore barred further compensation awards absent modification proceedings. In order to justify modification pursuant to Florida Statutes, Section 440.28, the claimant must demonstrate either a change in condition or a mistake in a determination of fact....

...Evidence which merely supplements or controverts that already taken is insufficient, as held in the oft-cited case of Sonny Boy's Fruit Company v. Compton, 46 So.2d 17 (Fla. 1950). Here, the Deputy Commissioner's failure to rule specifically on whether the requirements of Section 440.28 were met was not fatal, had there been competent substantial evidence to support modification....

...This is an appeal from the deputy commissioner's order denying wage loss benefits, transportation costs, payment of medical bills, attorney's fees, and costs. The deputy commissioner denied the claim on the grounds that claimant failed to petition for modification as provided by Section 440.28, Florida Statutes (1979), and that the evidence failed to establish a change of condition....

...er/carrier knew that claimant's condition had worsened since Dr. Matuszak's treatment of claimant was at the instance of employer/carrier. The deputy commissioner erred in denying the claim on the basis of claimant's failure to phrase his claim as a Section 440.28 [1] petition for modification....

...1st DCA 1983). The deputy commissioner's order denying wage loss benefits is reversed and the cause is remanded for a hearing on the claim, with the claim being treated as a petition for modification. ERVIN, C.J., and NIMMONS, J., concur. NOTES [1] Section 440.28, Florida Statutes (1979) provides: 440.28 Modification of orders....

...Claimant further established that he was unaware that part-time earnings could be considered, and that his attorney had no knowledge of his part-time employment until some three years after the date of the stipulation. We reverse the order of modification because it is based upon an erroneous interpretation or application of Section 440.28, Florida Statutes (1975), which provides: Upon a judge's own initiative or upon the application of any party in interest, on the ground of a change of condition or because of a mistake in the determination of a fact the judge of industrial claims may ......

...The evidence clearly established the tissue breakdown in Atkins' hand, the need for excising the mass and the hospitalization for surgery. There was no competent substantial evidence to support a contrary determination. Atkins was entitled to a modification based upon change of condition pursuant to Section 440.28....

...the said ninety-day period. In no event shall the time be extended on the application of any party beyond eight months, from the date set for the first hearing to take the testimony. This time limitation shall also apply to cases arising under F.S. Section 440.28, F.S.A., and to cases on remand to a judge when a hearing is set to take additional testimony, but shall not apply to cases where proof is presented to the judge showing that the party is in such physical or mental state that he cannot testify during the period above limited....

...ual to the present value of all future payments for both compensation and remedial treatment, care and attendance; and a compensation order so entered upon joint petition of all interested parties shall not be subject to modification or review under Section 440.28, Florida Statutes, F.S.A., if so stipulated by the parties and so ordered by the judge after finding that such provision is clearly for the best interests of the person entitled to compensation, as provided in subsection (g) of this Rule....

...(g) The judge shall make or cause to be made such investigations as he considers necessary in each case in which the parties have stipulated that a proposed final settlement of all liability of the employer shall not be subject to modification or review under Section 440.28, Florida Statutes, F.S.A., to determine whether such final disposition will definitely aid the rehabilitation of the injured worker or otherwise is clearly for the best interests of the person entitled to compensation, and in his discr...

...of the injury, payment was timely made by the employer. Moreover, in Budget Luxury Inns, Inc. v. Boston, 407 So.2d 997 (Fla. 1st DCA 1981), the Court addressed the issue of when payment began for purposes of the two-year statute of limitations under Section 440.28, Florida Statutes (1975)....

...affirmed the order of the JCC per curiam without opinion. Crawford & Co. v. Scott, 767 So.2d 1205 (Fla. 1st DCA 2000). The decision by the Florida district court does not moot the merits of this appeal as Florida law provides for modification of a JCC order. Under Fla. Stat. § 440.28 (1994), at any time prior to two years hearing." 15 If the remand decision is to award benefits, the procedural issue is moot....

...Our conclusion as above stated does not foreclose a future showing by Respondent that there has been a change in circumstances demonstrating claimant is no longer permanently and totally disabled and is capable of obtaining gainful employment. F.S. Section 440.28, F.S.A., of course, provides Respondents such a remedy by way of petition for modification....

...The IRC determined that the deputy commissioner made findings of fact contrary to the evidence presented, found that the evidence presented required a ruling on the merits in favor of the employer, and ordered the dismissal of the employee's claim. Claimant misapprehends the scope of a petition for modification. Section 440.28, Florida Statutes, authorizing a petition for modification when there has been a mistake of fact, [3] was not intended to afford claimant a vehicle to relitigate an identical issue which has been previously determined solely upon an in...

...the motion for rehearing without explanation. This obligation to inquire into a suggestion of incompetence was first addressed by Chief Commissioner Carroll, upon claimant's petition, through his attorney, to modify the order of 7-22-80 pursuant to section 440.28, on the ground that it contained a mistake of fact....

...pensation claim under Ch. 440, F.S., for temporary disability during knee replacement surgery, and for consequential impairment ( cf. City Investing v. Roe, 566 So.2d 258 (Fla. 1st DCA 1990), [ quashed, 587 So.2d 1323 (Fla. 1991)]), governed by Sec. 440.28 or by Sec....

...The respondents took the position that because Holder had previously been found to have reached maximum medical improvement by the 1980 order, he could not obtain temporary total disability benefits without seeking modification of that order in accordance with section 440.28, Florida Statutes (1977). That section provides in pertinent part: 440.28 Modification of orders....

...inue, reinstate, increase, or decrease such compensation, or award compensation. Respondents maintained that because more than two years had passed since the last payment of compensation pursuant to the 1980 order, the limitation period expressed in section 440.28 barred Holder's 1988 compensation claim....

...The First District Court of Appeal reversed, agreeing with the respondents that Holder was required to proceed by way of modification. However, on rehearing, the district court certified the question to this Court. It is well established that "[e]xcept to the extent modification is permitted by Section 440.28, compensation orders are governed by the same principles of res judicata, estoppel by judgment, and the law of the case as are judgments of a court." Caron v....

...1976); Hodges v. State Road Dept., 171 So.2d 523, 525 (Fla. 1965); Power v. Joseph G. Moretti, Inc., 120 So.2d 443, 445 (Fla. 1960); Boston v. Budget Luxury Inns, 474 So.2d 355, 357 (Fla. 1st DCA 1985). As explained by the First District Court of Appeal, Section 440.28 merely serves to allow modification, upon specified conditions, of compensation orders which would otherwise bar subsequent claims for workers' compensation benefits under principles of res judicata, estoppel by judgment, or law of the case. Therefore, the existence of the requisites for application of one of these doctrines must be present before it becomes necessary for a claimant to resort to Section 440.28 for relief....

...isability was "premature and not ripe for adjudication" at the time of the 1980 order. 586 So.2d at 1140 (Zehmer, J., dissenting). Confronted with this determination, the judge of compensation claims correctly concluded that modification pursuant to section 440.28 was not required....

...Likewise, the doctrines of estoppel by judgment and law of the case have no application to a compensation claim that was premature at the time of the prior proceedings and therefore was not adjudicated. See 32 Fla.Jur.2d, Judgments and Decrees §§ 102, 105, 116-18 (1981). When resort to section 440.28 was not necessary, the judge of compensation claims properly applied the limitation provisions contained in section 440.19(2)(a), Florida Statutes (1979)....

...1st DCA 1990), in which the First District Court of Appeal reversed the deputy commissioner's denial of Massie's application for modification of a previously entered order denying him workers' compensation. The district court held that the deputy commissioner erred by not allowing modification pursuant to section 440.28, Florida Statutes (1985), because of "a complete absence of evidence to support the finding of fact in the prior order." Id....

...In reaching this decision the district court noted that stress is an emotional condition which is difficult to qualify and that prior cases had dealt with physical hazards. On August 22, 1985, Massie filed a request for modification of the deputy commissioner's prior order, pursuant to section *520 440.28, Florida Statutes (1985), [2] alleging a change in his condition or a mistake in the deputy commissioner's determination of facts....

...care." The majority opinion violates both the plain language and the purpose of the act. For these reasons I dissent. BARKETT and KOGAN, JJ., concur. NOTES [1] We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. [2] This section reads as follows: 440.28 Modification of orders....

...n the original *163 hearings before the Deputy and before the Commission. The petition for modification does not therefore appear to be the proper procedure in this matter, due to the failure of the petition to come within the provisions of [F.S.A.] Section 440.28 of the Workmen's Compensation Law....

...In addition, the E/C have not shown that they will prevail in their motion for modification. Apparently, there has been no change in Alford's condition or circumstances since the entry of the PTD order; i.e., there is no new evidence regarding his physical condition, nor has he started working. See § 440.28, Fla....

...the contrary was based upon a mistake of fact." Id. Accordingly, the JCC entered an order modifying the claimant's AWW to include the overtime. On appeal, this court determined that the JCC erred in modifying the claimant's AWW: Except to the extent section 440.28 permits modification in cases of a change of condition or a mistake in the prior determination of the facts, compensation orders are governed by the same principles of res judicata, collateral estoppel, and law of the case as are applied in other courts.......

...The deputy commissioner found that claimant's condition had changed since the earlier order and awarded 75% permanent partial disability benefits of the body as a whole based upon a loss of wage-earning capacity. The deputy commissioner did not err in finding the claimant's condition had changed. Section 440.28, Florida Statutes (1977), provides for a modification of a previous compensation order on the ground that the claimant's condition has changed since the entry of the previous order....

...ecember 5, 1951, was an adjudication of the claimant's rights to compensation for permanent partial disability since it appears from the record that no modification was sought of that order within the period of one year from its entry as required by Section 440.28, Florida Statutes, 1951, F.S.A. It is the contention of the employer and insurance carrier that a subsequent claim more than one year after the entry of the original order was barred by Section 440.28, Florida Statutes 1951, F.S.A....

...Miami Roofing and Sheet Metal Company, Fla., 79 So.2d 785). See also: Bailey's Auto Service v. Mitchell, Fla., 85 So.2d 228; and Alexander v. Peoples Ice Company, Fla., 85 So.2d 846. In the case of Superior Home Builders et al. v. Moss, 70 So.2d 570, 572, the Court had occasion to consider Section 440.28, Florida Statutes 1951, F.S.A., the same statute with which we are presently concerned....

...e employee's claim and is in no position to assert that the original order of December 5, 1951, disposed of each and every claim on behalf of the claimant. We feel that the Deputy Commissioner and the full Commission were correct in determining that Section 440.28, Florida Statutes, F.S.A., did not bar an additional claim for permanent partial disability, for the employee did not seek relief under the statute....

...ture based upon the claimant's life expectancy. The law is clear that compensation orders are governed by the same principles of res judicata, collateral estoppel, and law of the case as are applied to judgments in other courts, except to the extent section 440.28, Florida Statutes, permits modification....

...These future benefits were already "secured" under the final order of August 5, 1991, and the JCC had no jurisdiction to alter, amend, or otherwise to "re-secure" all or any part of those benefits in the absence of a petition for modification under section 440.28....

...and had reached maximum medical improvement on July 13, 1976. The order directed that she be provided further diagnostic testing, including a myelogram at the expense of the employer and its two carriers (E/C). Thereafter, in June 1979, pursuant to section 440.28, Florida Statutes (1977), claimant sought a modification of that order based on a substantial change in condition....

...Since no timely appeal was taken from that order, claimant's attempted collateral attack on its validity at this time will not be permitted. That does not mean, however, that the May 24, 1983, order conclusively decided the issue now before us. Except to the extent modification is permitted by section 440.28, Florida Statutes, compensation orders are governed by the same principles of res judicata as are judgments of a court....

...To apply estoppel doctrines in such a case would dictate improper appeals by parties who do not wish to challenge the decretal portion of an order. Claimant's right to further medical treatment by Dr. Martinez was not, and need not be, perfected by way of modification *358 under section 440.28, since her legal right to continuing medical benefits, as provided in the prior order, has never been terminated....

...The employer/carrier had defended that claim on the basis that the claimant's condition, by that time, was not causally related to the accidents. No appeal was taken by the claimant from the May 24, 1983, order. In my view, the claimant's subsequent claim for treatment, absent grounds for modification under Section 440.28, was properly denied by the June 28, 1984, order....

...is compensable physical impairment, is not supported by the evidence referenced in his order or by the parties on appeal, and because the order reflects an apparent misapplication of the standards governing determination of change of condition under § 440.28, Florida Statutes....

...n Rolle's part so that Rolle is not entitled to the withheld benefits. Given the procedural posture of this case, we find this argument irrelevant. If good reasons exist for modifying the 1993 order, the party seeking modification must proceed under section 440.28, Florida Statutes, before the judge of compensation claims....

...In September, 1978, at claimant's request, the employer/carrier (E/C) authorized an evaluation of claimant's physical condition. Claimant thereafter received treatment from two physicians, and, on May 5, 1980, filed a Petition for Modification pursuant to Section 440.28, Florida Statutes (1979)....

...Kurt Preston Hampp of Jacobs, Robbins & Gaynor, P.A., St. Petersburg, for appellees. PER CURIAM. This is an appeal from a workers' compensation order denying claimant's petition for modification as being barred by the statute of limitations pursuant to § 440.28, Florida Statutes....

...ication and dismissing the claim. The April 29, 1980 renewed claim and the October 16, 1979 petition for modification were filed more than two years after the payment of benefits pursuant to the 1974 compensation order. We agree with the deputy that § 440.28 (1969) clearly prevents filing a petition for modification more than two years after payment pursuant to a compensation order, and does not *795 allow renewal of the limitation period by a voluntary carrier payment after that two-year period....

...orce and effect at the present time and at any time in the future in relation to the instant claim; that this settlement for medical expenses is a final one; and that any Order entered hereon shall not be subject to a Petition for Modification under Section 440.28 of the said Act....

...ment of compensation for permanent total disability was made. The deputy commissioner therefore properly concluded that the parties intended to discharge all liability in exchange for lump-sum payment and that no modification should be allowed under section 440.28, Florida Statutes (1981)....

...and was not anticipated by the original diagnosis; and (3) whether the judge erred by allowing him to proceed with the February 1987 hearing without the benefit of an attorney or guardian. In regard to the first issue, claimant urges reversal under Section 440.28, Florida Statutes (1987), [1] contending that the judge made a mistake in a determination of fact in that he did not know the extent of claimant's psychological disability....

...o consider certain testimony, because claimant failed to present this testimony at the hearing). Turning to appellant's second point, we find merit and agree that the judge erred by not granting the petition for modification for change of condition. Section 440.28 [2] allows a judge, on the ground of a change in condition, to review a compensation case and enter a modified order....

...The evidence later submitted at the modification hearing, including review of claimant's own testimony over the years, clearly shows that claimant's psychological condition had become progressively worse. This court stated in Westwinds Transp., Inc. v. Murphy, 494 So.2d 519, 522 (Fla. 1st DCA 1986), that section 440.28 was designed to "afford relief to a claimant whose condition either 1) becomes progressively worse when not anticipated by the original diagnosis or 2) is the product of evidentiary factors not known at the time of the initial claim pr...

...ppealable issue that should have been raised in connection with the May 14, 1987 compensation order. AFFIRMED in part, and REVERSED in part and REMANDED for further proceedings consistent with this opinion. NIMMONS and ZEHMER, JJ., concur. NOTES [1] Section 440.28 provides in pertinent part: [U]pon the application of any party in interest, on the ground of a change in condition or because of a mistake in a determination of fact, the deputy commissioner may ......

...as to oust the Circuit Court from its jurisdiction to enforce the order and that the claimant is entitled to have such order enforced until the order has been modified by the Deputy Commissioner pursuant, here, to an application by the carrier. See § 440.28, Fla....

...Appellant seeks review of a 10/30/85 workers' compensation order denying temporary total disability (TTD) or temporary partial disability (TPD) benefits from 1977, and denying rehabilitation, on the ground that his claim was barred by the statute of limitations in section 440.28, Florida Statutes....

...cted until seven years after the date of the injury. We find that appellant's claim was a subsequent claim for additional compensation governed by section 440.19(2)(a), Florida Statutes, rather than a petition for modification of a prior order under section 440.28, Florida Statutes. As such, the claim was not barred by the two year statute of limitations under section 440.28....

...D) or a greater percentage of permanent partial disability (PPD) benefits than the 20% PPD awarded in the original order entered March 9, 1978. We affirm. In the modification proceedings, Hall asserted that there had been a change of condition under Section 440.28, Florida Statutes, because her disability [1] had changed since the original hearing....

...mented by the obesity. After close examination of the record in this case, we have been unable to find any evidence indicating any change in condition either in terms of the claimant's physical condition or wage earning capacity. We recognize that a Section 440.28 change in condition should be construed so as to encompass a change in wage earning capacity even though the claimant's physical condition remains unchanged and even though the original award was based on physical impairment and no economic loss....

...ld. Further, appellant states in her brief that *328 at the second hearing, "claimant presented evidence that she was no more able to engage in employment in the open labor market then than she had been at the time of the first hearing." To construe Section 440.28 to permit modification of the first order under the evidence which was presented to the deputy in this case would, in our view, render nugatory the legislative standard of "change in condition." We do not believe that the court in Fles...

...as to oust the Circuit Court from its jurisdiction to enforce the order and that the claimant is entitled to have such order enforced until the order has been modified by the Deputy Commissioner pursuant, here, to an application by the carrier. See § 440.28, Fla....

...599, 601 (8th Cir.1904); Caldwell v. Modern Woodmen of America, 90 Kan. 175, 133 P. 843 (Kan. 1913). Case No. BP-46: We find that the dc erred in refusing to set aside the compensation order after the e/c had filed a motion to set aside the order pursuant to Section 440.28, Florida Statutes....

...inued, "that to allow the employer/carrier to obtain modification would only excuse a lack of diligent preparation on their part." In so ruling, the dc imposed a due diligence standard on the e/c — a standard which in our opinion is not required by section 440.28, when a motion to modify a prior compensation *675 order is grounded on fraud, and when it is filed within the applicable two-year limitation period....

...Hickman, 445 So.2d 1023, 1027 (Fla. 1st DCA 1983), pet. for review dismissed, 447 So.2d 887 (Fla. 1984). See also Ogburn v. Murray, 86 So.2d 796, 798 (Fla. 1956); Kline v. Belco, Ltd., 480 So.2d 126 (Fla. 3rd DCA 1985), review denied, 491 So.2d 278 (Fla. 1986). Section 440.28 provides the dc with the power to modify an order based on change in condition, or because of a mistake in the determination of facts within two years after the date of the last payment of compensation pursuant to order. While modification under section 440.28 does not affect compensation previously paid, we find that it provides a means of modifying or rescinding an order that is, as in the instant case, stayed pending appeal. Section 440.28 by its terms does not limit one seeking to modify a compensation order to a shorter period than two years from the entry of the order, or within two years after the last payment of compensation, because of such person's lack of due diligence....

...deMontmollin of McGalliard, Mills & deMontmollin, Gainesville, for appellee. JOANOS, Judge. The determinative question in this workers' compensation appeal is whether a claim for additional compensation filed in February, 1982, was barred by the limitations period set forth in Section 440.28, Florida Statutes, or was properly allowed to proceed under Section 440.19(1)(a), Florida Statutes (1969), current version found at Section 440.19(2)(a), Florida Statutes (1981)....

...The claim filed in February, 1982, was for further medical care, rehabilitation, TTD, modification of the 20% permanent partial disability ("PPD") previously awarded, PPD benefits, permanent total disability benefits, and other items. The deputy commissioner determined that: the limitations period for modification under Section 440.28 had run, but under Section 440.19(1)(a), the limitations period had not run; claimant was proceeding under the latter section; and claimant was entitled to additional TTD benefits and compensation for an additional 20% PPD of the body as a whole based on loss of wage earning capacity....

...atment has been furnished by the employer without an award on account of such injury a claim may be filed within two years after the date of the last payment of compensation or after the date of the last remedial treatment furnished by the employer. Section 440.28, Florida Statutes (1969) provides: *1358 Upon their own initiative or upon the application of any party in interest, on the ground of a change in condition or because of a mistake in a determination of fact the commission may at any ti...

...crease such compensation, or award compensation. Appellants contend that because a date of maximum medical improvement was determined and a permanent disability established in the order of May, 1974, the appropriate proceeding was modification under Section 440.28, and therefore the limitations period had run....

...ly paid PPD benefits beginning March 22, 1979. A petition for modification was filed October 16, 1979, and a claim was filed April 29, 1980. The deputy commissioner dismissed the claim and denied modification. This court agreed "with the deputy that § 440.28 (1969) clearly prevents filing a petition for modification more than two years after payment pursuant to a compensation order, and does not allow renewal of the limitation period by a voluntary carrier payment after that two year period." T...

...intended to permit the claim to proceed as an initial claim for benefits based on the 1972 injury, as opposed to modification of the award based on the 1970 injury, for which benefits had been awarded in the 1974 order and the limitations period of Section 440.28 had run....

...1st DCA 1981). That there existed a second injury which provided the basis for a new initial claim distinguishes Bowman from the instant case, in which only one injury occurred pursuant to which an order was entered awarding compensation benefits. Only Section 440.28 is appropriately applied to the present case and no events have occurred which would toll or renew the limitations period under that section. The distinction between Bowman and the instant case is significant, because Sections 440.19(1)(a) and 440.28 are designed to be used in different situations, depending on *1359 whether benefits for a particular injury have been furnished pursuant to a compensation order or entirely without an award. The present case is one in which clearly only Section 440.28 should be applied....

...t, incurred subsequent to the second accident. The instant order noted that Murphy would, however, be due no money benefits from Scotty's, having settled his claim against it in 1982. This holding effectively reduced the TTD benefits awarded by 25%. Section 440.28, Florida Statutes (1985), provides that "upon the application of any party in interest, on the ground of a change in condition or because of a mistake in a determination of fact, the deputy commissioner may ......

...the point that new evidence becomes available which was not and could not have been previously known. Hughes at 834. The Hughes exception does not operate herein to validate the D/C's finding of mistake of fact. The change of condition provision of Section 440.28 is designed to afford relief to a claimant whose condition either 1) becomes progressively worse when not anticipated by the original diagnosis or 2) is the product of evidentiary factors not known at the time of the initial claim proceeding....

...e period of January 23, 1981, to March 26, 1982. First, we disagree with the deputy's finding that as a consequence of the previous denials of permanency benefits, claimant was foreclosed from requesting permanency benefits a third time. Absent from section 440.28, Florida Statutes, is any language which limits the number of times that a party in interest, or the deputy on his or her own volition, may modify a prior order, so long as the modification is timely....

...Next, we disagree with the deputy's finding that claimant did not file a timely petition for modification as relates to claimant's request for permanency benefits. Here, claimant filed a claim for temporary total disability benefits on December 30, 1981, well within the two year period mandated by section 440.28....

...enefits requested. See Washington v. Dade County School Board, IRC Order 2-3694 (1979); Sauls v. Fred Howland, Inc., 5 FCR 48 (1962) (the Florida Industrial Commission noting that there is no provision under the workmen's compensation law other than section 440.28 for a deputy to take jurisdiction and award additional workmen's compensation benefits where a prior order determining the merits in the cause has been entered by a deputy commissioner)....

...[2] Contrary to the employer/carrier's argument, we find that the November 25, 1980, order awarding temporary total disability benefits, in part, which award was affirmed on appeal, was payment of compensation pursuant to any compensation order within the meaning of section 440.28....

...Knapp appeals from a workers' compensation order denying his claim for reinstatement of permanent total disability (PTD) benefits. Knapp claims that the judge of compensation claims (JCC) erred in failing to require a modification of previous orders as required by section 440.28, Florida Statutes....

...A carrier may not unilaterally modify an order so as to oust the circuit court from its jurisdiction to enforce the order, and a claimant is entitled to have such order enforced until the order has been modified pursuant to an application for modification under section 440.28, Florida Statutes....

...still in effect. Since it was, the court should have enforced it. Alvarez v. Kendall Assoc., 590 So.2d 518 (Fla. 3d DCA 1991), and cases cited therein. Modification of the 1991 order would be under the jurisdiction of a judge of compensation claims. § 440.28, Fla....

...of- a cause for a period of 350 weeks, the period of compensation, to review applications under Section 440.15 (3) (V) Florida Statutes 1941. In our view this question must be answered in the negative. In the opinion of October 2 we held that under Section 440.28, Florida Statutes of 1941, such review was limited to “one year after the date of the last payment, or at any time prior to one year after the rejection of a claim.” We think however that the one year period is not limited to cases arising under Section 440.15 (3) (V), Florida Statutes 1941....

...The judge of compensation claims found benefits had been secured after Mr. Valdes's counsel filed a petition for benefits; and that he took other steps to preserve benefits, in defending modification proceedings that Galco Construction and its insurance carrier (GAB) instituted under section 440.28, Florida Statutes (1999)....

...Eventually, in December of 1999, Mr. Valdes was arrested and charged with insurance fraud in connection with his workers' compensation claim for the 1985 injury. GAB suspended all indemnity payments on the day of his arrest, and filed a petition for modification under section 440.28, seeking to terminate his attendant care benefits....

...To allow for reasonable compensation to an attorney under these circumstances while preventing double dipping, a fee should be awarded [] based on the hours expended in successful defense of the E/C's modification action. The present case is readily distinguishable from Capps, because here a petition for modification under section 440.28 was filed, as to the attendant care benefits; and no order required payment of indemnity benefits when the litigation began....

...'s fee award. These future benefits were already `secured' under the final order . . . and the JCC had no jurisdiction to alter, amend, or otherwise to `re-secure' all or any part of those benefits in the absence of a petition for modification under section 440.28....

...Langdon, Gainesville, for appellants. Craig F. Hall of Hall & Hall, Gainesville, for appellee. NIMMONS, Judge. The employer and carrier (E/C) seek reversal of the deputy commissioner's award of benefits contending that such benefits were barred by the limitations provision of Section 440.28, Florida Statutes (1977)....

...continuing "for the time and in the manner provided by law," payment of medical bills, and treatment by Dr. Freed "as the nature of his injury and the process of his recovery might require." The deputy refused to invoke the limitation provisions of Section 440.28. The limitation statutes relevant to this case are §§ 440.13(3)(b) and 440.28, F.S. (1977) (currently 440.19(1)(b) and 440.28 (1983), respectively). Section 440.28 provides that at any time prior to two years after the date of the last payment of compensation pursuant to any compensation order, the deputy may review a case and issue a new compensation order on the ground of a change in condition....

...years after full payment of PPD under the 1980 order was made in 1981. The 1980 order having adjudicated MMI and awarded PPD, the 1984 claim, insofar as it sought additional temporary and permanent disability benefits, must meet the requirements of Section 440.28, including its limitations provisions....

...This court in Bassett's Dairy distinguished the statute of limitations for filing of initial claims and the limitation for filing of a petition for modification. The claimant in Bassett's Dairy was seeking a modification of a previous order and, thus, it was held that Section 440.28 applied. We find Bassett's Dairy indistinguishable on the issue of disability benefits. There is no provision in Section 440.28 which tolls the running of the statute if payments are voluntarily made by the E/C. Further, in this case, the voluntary payment of the additional 5% PPD was made after the two-year statutory period had run. There is no provision in Section 440.28 which would revive the claim after the statute had run....

...This was not at issue in Bassett's Dairy, the court expressly noting that such issue was not before it. Id. at 1357. We know from Bryant v. Elberta Crate & Box Co., 156 So.2d 844 (Fla. 1963), that it was not incumbent upon the claimant to establish a change of condition under Section 440.28 in order to obtain additional medical care. [2] Therefore, the two-year limitation period under Section 440.28 is not applicable....

...WENTWORTH, J., concurs specially. WENTWORTH, Judge, concurring specially. I agree with all conclusions reached and with the majority opinion except that, as to medical care, the award can in my opinion be affirmed under the circumstances without deciding the relevance of § 440.28, Florida Statutes....

...1963) (granting a claim for remedial medical care filed within two years after an order finding MMI and granting permanent disability *292 compensation), may be construed as holding that the right to treatment did not depend on showing any change of condition, under § 440.28, other than the change implicit in proof of need and feasibility of surgery which had been lawfully rejected before the prior order. In the present case I would affirm the award of medical treatment simply because, even assuming § 440.28 might apply to a medical claim, and whatever might be its effect after an order finding MMI, the parties clearly did not treat the 1980 order as one terminating remedial care during the years preceding the current claim....

...983 edition of Florida Statutes. [2] It seems apparent that the deputy must have been of the view that the claimant's right to further medical treatment was dependent on a showing of change of condition or mistake in determination of fact under Sec. 440.28....

...would have required the employer to furnish such upon a request and showing of need therefor. Id. at 845. Compare Fruit Bowl, Inc. v. Cheathem, 155 So.2d 865 (Fla. 1963) (first order denied benefits including medical — held change of condition under Section 440.28 required to be shown to support subsequent claim)....

...compute compensation... ." The issue of average weekly wage was a necessary element of the claim for disability compensation in 1981 and remains so today for the same injury occurring in 1978. It is many years too late to modify the 1981 order under section 440.28, Florida Statutes (1977)....

...turn a compensation order in no way assailed here. The present proceeding is separate and distinct from the 1981 proceeding [2] in which temporary partial disability benefits were awarded. Mr. Champlovier does not seek modification of an order under section 440.28, Florida Statutes (1993)....

...These cases stand for the important but inapposite [4] proposition that a final order awarding compensation benefits should not be revisited after time for appeal expires, [5] absent modification on account of "a change in condition or because of a mistake in a determination of fact." § 440.28, Fla....

...67 per week and a corresponding compensation rate of $82 per week. Id. We reversed, holding that, in the absence of a direct appeal, the 1983 final order could be amended only upon a showing of a "mistake in the determination of a fact." Id., citing § 440.28 Fla....

...amounts contained in the December 1985 order based on a change in condition on the ground that she was no longer receiving those benefits. We agree with appellant that the JCC erred in determining that he lacked jurisdiction to modify these amounts. Section 440.28, Florida Statutes (1981), provides in part: Upon a deputy commissioner's own initiative, or upon the application of any party in interest, on the ground of a change in condition or because of a mistake in a determination of fact, the d...

...Although the December 1985 order was dated more than two years prior to claimant's request for an adjustment in her AWW and CR, that request was clearly made within two years following receipt of payment of compensation under the 1985 order. Consequently, section 440.28 does not preclude appellant from seeking modification of AWW and CR....

...fact cannot be regarded as harmless and that the petition should have been granted. The Florida precedent noted by the deputy's order establishes that the statute must be administered in fairness to both sides and that the modification standards in § 440.28, Florida Statutes, do not apply to settlement agreements such as the one in this case....

...McConnaughhay of Karl, McConnaughhay, Roland & Maida, P.A., Tallahassee, for appellees. MILLS, Judge. Ford appeals from a workers' compensation order denying his claim for treatment at a pain clinic. He contends the deputy erred in finding the claim barred by Section 440.28, Florida Statutes (1979)....

...The order, as amended, was entered on 30 April 1982. On 11 April 1983, Ford filed a claim again requesting pain clinic treatment. He argued the claim was timely under Section 440.13(3)(d), Florida Statutes (Supp. 1978), now Section 440.19(1)(b), Florida Statutes (1983), or under Section 440.28, Florida Statutes (1979). The deputy entered an order finding Ford could not proceed under Section 440.19(1)(b), and treating the claim as a Section 440.28 petition to modify the 6 March 1981 order....

...That provision applies to initial claims for remedial attention and subsequent claims for remedial attention already awarded pursuant to a prior order. *1052 Because Ford sought the same medical attention denied in the March 1981 order, the proper procedure was to petition for modification of that order pursuant to Section 440.28. The question then becomes whether the petition was untimely. In part, Section 440.28 provides: [T]he deputy commissioner may, at any time prior to 2 years after the date of the last payment of compensation pursuant to any compensation order, or at any time prior to 2 years after the date copies of an order rejecting a...

...the date of the last payment of compensation pursuant to any compensation order." Thus the petition, having been filed more than two years after the date copies of the March 1981 order were mailed to the parties, was untimely. Ford also argues that Section 440.28 does not apply because it pertains only to modification of compensation orders, not to modification of orders relating to medical benefits. We reject this argument because Section 440.28 has been construed to encompass modification of orders relating to medical benefits. Fruit Bowl, Inc. v. Cheathem, 155 So.2d 865 (Fla. 1963); Bishop v. Pinellas Framing & Finishing, 414 So.2d 596 (Fla. 1st DCA 1982). We do, however, think the language of Section 440.28 lacks preciseness because medical benefits are not always considered compensation. For example, remedial medical treatment is not payment of compensation so as to toll the limitation period of Section 440.28....

STURGIS, Chief Judge. We consider the petition of an employee for writ of certiorari to review an order of the Industrial Commission affirming the action of the deputy commissioner in denying his petition, under Section 440.28, Florida Statutes, F.S.A., for modification of his compensation award on the grounds (1) of a mistake of fact in the order upon which the compensation was based, and (2) that there was a change in his physical condition attributable properly to the injury....

...He further insists that the Full Commission erred in holding that there was competent substantial evidence to support the order denying the petition for modification. It is petitioner’s contention that upon a hearing under the provisions of F.S. § 440.28, F.S.A., it is only necessary for the employee to produce evidence of a present disability that can be attributable to the injury for which the compensation was allowed rather than maintain the burders of proving it to be so attributable, a...

...which to establish the cause for or conditions surrounding the injury. It is there applied in aid of determining whether the injury arose out of and in the course of employment. It is not, however, applicable to petitions for modification under F.S. § 440.28, F.S.A....

...Such an interpretation of the statute would lead to such a state of uncertainty and confusion and would so increase litigation under the Workmen’s Compensation Act and costs of administration as to put in jeopardy the benefits designed for employees under the act. We hold, therefore, that in proceedings under F.S. § 440.28, F.S.A., for modification of the compensation award on the grounds presented in this cause, the burden of proof is on the employee to establish by substantial and competent evidence the grounds upon which he seeks to have the order modified....

...Hurt, Sr., of Hurt & Parrish, P.A., Orlando, Bill McCabe, of Shepherd, McCabe & Cooley, Longwood, for appellee. PER CURIAM. The employer/carrier appeal from an order of the judge of compensation claims which order held that the limitation period under Section 440.28, Florida Statutes (1977), is not applicable to bar the claimant's application for temporary total disability (TTD) benefits....

...tion. [2] Appellants took the position that since appellee had previously reached MMI with a permanent partial impairment as found in the 1980 order, he could not obtain TTD benefits in 1988 without seeking modification of the 1980 order pursuant to Section 440.28, which provides in part: Upon a deputy commissioner's own initiative, or upon the application of any party in interest, on the ground of a change in condition or because of a mistake in a determination of fact, the deputy commissioner...

...440.25 and, in accordance with such section, issue a new compensation order which may terminate, continue, reinstate, increase, or decrease such compensation or award compensation. Appellants asserted that since more than two years had passed since the last payment of PPD benefits, the limitation period expressed in Section 440.28 was operative to bar appellee's claim for TTD benefits....

...Temporary total disability is generally unavailable for periods after the date of MMI except as above noted upon changed condition. Coca-Cola Bottling Company v. Tunson, 534 So.2d 910 (Fla. 1st DCA 1988); Department of Offender Rehabilitation v. Godwin, 394 So.2d 1091 (Fla. 1st DCA 1981). Except to the extent that Section 440.28 permits modification, compensation orders are governed by the same principles of res judicata and estoppel as are applied to judgments of courts....

...However, these cases are distinguishable. In Smitty's Coffee Shop, the earliest Florida decision finding a right to TTD benefits after MMI, and the case which provides the authority for the later cases providing for post-MMI TTD benefits, the claimant proceeded under Section 440.28 in applying for the additional benefits. In Palm Beach County and Atkins, the claimant also proceeded by way of Section 440.28. In Lopez and Delgado the establishment of MMI and the claim for post-MMI TTD benefits were part of one proceeding, so Section 440.28 and the time limitations prescribed therein were not at issue....

...inconsistent with the terms of that order. Accordingly, we hold that a claimant who petitions for application of the exception recognized in Smitty's after he has reached MMI, as found in a previous order, is ordinarily required to proceed by way of Section 440.28....

...tion of the statutory bar. There appears to be no question that remedial care has been provided (by order or otherwise) without interruption. Although provision of such benefits has not been deemed to be payment of "compensation" within the terms of Section 440.28, the award or voluntary payment of remedial (as opposed to palliative) care after adjudication of MMI appears to recognize the claimant's re-entry of a temporary disability status (whether or not TD compensation is paid or payable)....

...er legal or equitable modification of the permanency adjudication, or affected the character of compensation payments made, and (2) what effect that would necessarily have on the legal and equitable accrual or waiver of the limitations defense under Section 440.28....

...nt, must be taken into account in any application of the statutory limitations provisions which qualify res judicata principles. For the foregoing reasons, the current TTD claim represents a changed condition which is prima facie within the terms of Section 440.28, even though it was a contemplated change....

...This follows from the unavoidable conclusion that the original order adjudicated and set at rest the fact of claimant's eligibility for permanent disability benefits based on MMI, which under the statutory scheme excludes temporary disability benefits absent modification under Section 440.28....

...This result is said to be mandated because the original award of permanent disability benefits constituted a final determination of the employee's rights to compensation benefits which bars further compensation benefits for temporary disability unless timely modified pursuant to section 440.28, Florida Statutes....

...m before it comes into being. The judge's ruling in the appealed order that this claim for temporary disability compensation benefits is a new claim governed by the statute of limitations in section 440.19(2)(a) is correct and should be affirmed. I. Section 440.28 provides that a claim for modification is timely only if filed "prior to 2 years after the date of the last payment of compensation pursuant to any compensation order." The term "compensation" is defined in section 440.02(6) as meaning...

...As early as 1941 this statutory definition of compensation was said to support the notion that the Florida Workers' Compensation Act draws a distinction between medical benefits and disability compensation benefits, and that for purposes of modification of disability compensation benefits pursuant to section 440.28, it was necessary that the claim be filed within two years of the last payment of disability compensation to be timely....

...er case was eminently correct, under the facts there present. 79 So.2d at 787-788. The majority opinion in the instant case is consistent with this long-standing construction of the act, and it remands for further consideration of the time bar under section 440.28 in light of the possible application of waiver or estoppel as allowed by the quoted discussion from Brantley v....

...440, but it is noteworthy that none of the cited cases, nor any other Florida case of which we are aware, has ever considered the precise language of section 440.10, the section that imposes liability on the employer under the act, as it relates to section 440.28....

...r 440.13 as "compensation" payable by the employer under the act, and is to that extent seemingly in conflict with the definition of compensation in 440.02(6). Therefore, it can be reasonably postulated that unless the word "compensation" as used in section 440.28 is construed to have the same meaning as and to be coextensive in application to the employer's obligation to pay the "compensation" required by section 440.10, which includes payments for medical benefits, the statutory scheme presents a patent ambiguity as to the meaning of the act when read as a whole....

...As the workers' compensation act is required to be liberally construed in favor of the claimant so as to resolve all ambiguities in favor of coverage for the employee, Daniel v. Holmes Lumber Co., 490 So.2d 1252 (Fla. 1986), it would seem only reasonable that the compensation referred to in the section 440.28 time limitation must necessarily include payments for remedial medical benefits under section 440.13. This construction of section 440.28 is consistent with the legislative intent now expressed in section 440.19 in regard to the tolling of the two-year period for filing claims for disability compensation benefits being tied to the payment of either disability compensation benefits or remedial medical benefits....

...is not a new claim for disability compensation benefits governed by the time limitations in section 440.19 because the 1980 order forecloses any future payment of compensation benefits for temporary disability and must be timely modified pursuant to section 440.28, even though such benefits are directly caused by his having to undergo the total knee replacement operation that the employer and carrier admit they are obligated to pay for under the act. Whether or not the employer's concession of liability for this remedial medical care may serve to avoid the two-year limitation period in section 440.28 under the concepts of waiver or estoppel discussed above, chapter 440 should be construed and applied so as to avoid the anomalous situation presented here, in which the injured employee must undergo a compensable medical operation tha...

...aring held on September 14, 1988, to pay the claimant's hospital bill totaling $17,923; but they defended the claim for disability compensation benefits incidental to the surgery on grounds that it was barred by the two year statute of limitation in section 440.28....

...It is stipulated and agreed in this case that the medical care had been continuous from that time to the present. Therefore, under the Supreme Court's interpretation of the above-mentioned, [2] the Statute on compensation had not run on this case. I reject the employer/carriers (sic) position that Florida Statute 440.28 applies, in that I find the claimant does not have to seek modification of the prior Order to receive TTD benefits....

...Obviously, this claim for temporary disability compensation benefits did not come into being until made necessary by the admittedly compensable knee replacement operation. Thus it was characterized by Judge Householder as a new claim for benefits governed by section 440.19(2)(a). [3] The judge likewise concluded that section 440.28 was not implicated because no modification of provisions granting relief in the 1980 or 1985 orders was required to award temporary disability compensation benefits in this instance....

...edical care pursuant to the 1980 order continuously to the filing of the current claim was sufficient to avoid any bar to this claim by the two-year limitation in section 440.19(2)(a). Finally, the judge correctly ruled that modification pursuant to section 440.28 was not required because the claim for benefits incident to the knee replacement surgery was not matured and adjudicated in 1980, and that no adjudication in either prior order required modification to allow these additional temporary benefits. Modification of a prior order under section 440.28 is necessary only to avoid application of the principles of res judicata, which preclude the relitigation of matters that were or should have been adjudicated in a prior proceeding resulting in a final order or judgment....

...See 32 Fla.Jur.2d, Judgments and Decrees §§ 110-112 (1981). Orders of a judge of compensation claims under chapter 440 are subject to the same principles of res judicata, estoppel by judgment, and law of the case as are judgments of a court, except as provided in section 440.28. Hodges v. State Road Dep't, 171 So.2d 523 (Fla. 1965); Boston v. Budget Luxury Inns, 474 So.2d 355 (Fla. 1st DCA 1985). Although section 440.28 allows modification of things already adjudicated within the two-year statutory period, it obviously follows that modification under section 440.28 is neither necessary nor appropriate in respect to a claim for compensation benefits arising out of a particular industrial accident unless that particular claim was either adjudicated or was ripe and should have been adjudicated when the prior order or award was rendered. Caron v. Systematic Air Services, 576 So.2d 372 (Fla. 1st DCA 1991). In summary, resort to section 440.28 is only required to reopen claims for benefits that have been explicitly or by necessary implication adjudicated in a previous order because they have become barred by principles of res judicata, collateral estoppel or law of the case. Reference to section 440.28 is neither necessary nor appropriate in respect to the claim now under review because this claim for temporary disability compensation benefits was not, and could not have been, adjudicated by the 1980 order for the reason that it was not yet ripe for adjudication. This element essential to the application of res judicata has not been satisfied. That being so, Judge Householder was correct in not looking to the statutory exception to that doctrine provided in section 440.28. B. The majority opinion's conclusion requiring modification pursuant to section 440.28 is based on the rationale that claimant's status at MMI and his entitlement to permanent disability compensation benefits under the act were adjudicated in the 1980 order, and that adjudication terminated any further right to receive t...

...This rationale is based on an analysis of prior appellate decisions in which the courts recognized that the injured employee's claim for temporary disability benefits after reaching MMI had proceeded by way of modification of prior orders pursuant to section 440.28....

...e precise issue presented in this case. The critical foundation for the majority's rationale is the stated principle that an adjudication of permanent disability benefits based on MMI "excludes temporary disability benefits absent modification under Section 440.28." No statutory language is cited in support of this conclusion, and I have searched chapter 440 in vain attempting to find any....

...udicate his claim, must be modified within two years of the last payment of permanent compensation benefits before he can assert his claim. In other words, unless claimant fortuitously needs the operation within the two year time period specified in section 440.28, he can never even assert the claim when it does arise....

...e having the same facts and historical development as this case. Judge Wentworth has appropriately emphasized "the fact specific nature of any inquiry as to when a prior order granting or denying such care, or other statutory benefits, may implicate section 440.28, when the current and prior claims involve identity of issues." Caron v....

...Rule 9.030(a)(2)(A)(v): Is a compensation claim under Ch. 440, F.S., for temporary disability during knee replacement surgery, and for consequential impairment ( cf. City Investing v. Roe, 566 So.2d 258 (Fla. 1st DCA 1990), pending S.Ct. 76-702), governed by Sec. 440.28 or by Sec....

...I prefer to phrase the question somewhat differently than the majority, however, because I do not view the determination of maximum medical improvement (MMI) in the prior order as constituting *1147 a conclusive termination, absent timely modification under section 440.28, of claimant's right to temporary benefits incident to timely filed medical claims that were not ripe for adjudication when the order on MMI was entered....

...Weller Construction Company, 132 So.2d 553 (Fla. 1960), that where a statutory amendment lengthens the limitation period for filing a claim, the amendment applies to claims which are still viable at the time of the amendment. In light of our holding that Section 440.28 provides the applicable limitation period, we need not address the merits of the trial court's application of the amended statute....

...1st DCA 1985). [5] In case law applying the pre-1979 Act, the qualifying term "without an award" found in Section 440.19(1)(a) is cited as a ground for requiring the claimant seeking additional compensation to meet the stricter time limitation requirements of Section 440.28, since benefits furnished pursuant to an earlier order did not act to toll the time limitations of Section 440.19....

...Both parties were represented by counsel at the pre-trial conference held March 8, 1989. At the hearing, claimant's counsel argued that claimant's letter of September 3, 1987, was adequate to toll the time for the filing of a petition for modification under section 440.28, Florida Statutes....

...accordance with the procedure prescribed in respect of claims in § 440.25 and, in accordance with such section, issue a new compensation order which may terminate, continue, reinstate, increase, or decrease such compensation or award compensation. § 440.28, Fla. Stat. (1983). Thus, once a date of maximum medical improvement has been established and permanent disability awarded or denied, additional claims for benefits must be made by way of a section 440.28 petition for modification....

...The express articulation of the procedure to be employed by a claimant's attorney in withdrawing from a workers' compensation case indicates that the rule is but one aspect of the scheme to protect the interests of the injured employee. However, there is nothing in rule 4.060(c), or in section 440.28, which could be read as precluding a claimant from acting on his or her own behalf, even though purportedly represented by counsel....

...In addition, although employer/carrier have recited the appropriate standard and supporting authority for modification of a workers' compensation order, these principles are inapposite to the issue on appeal. It is well settled that modification under section 440.28 must be based on a showing of a change in condition or a mistake in a determination of fact, and that modification proceedings are not intended as a vehicle for relitigation of issues previously determined....

...Olmo an opportunity to make an evidentiary showing of entitlement to permanent total disability benefits. III. Once a workers' compensation claim has been litigated and decided, the determination stands, absent "a change in condition or . . . a mistake in a determination of fact[.]" § 440.28, Fla....

...Services after September 1988 were rendered by claimant's nephew. The parties present their argument in terms of record support for "modification" of the terms of an earlier order that awarded attendant care for 12 hours per day, based on "change of condition." Cf., section 440.28, Florida Statutes....

...Appellants, Escambia County Transit and Home Indemnity Company ("E/C") appeal an order of the Judge of Compensation Claims ("JCC") awarding claimant permanent total disability ("PTD") benefits. Appellants argue that the JCC erred in estopping the E/C from raising the two-year limitations period in section 440.28, Florida Statutes. We hold that the JCC erred in estopping the E/C from raising the limitations period in section 440.28 and reverse....

...laim for PTD benefits as a petition for modification based on a change in condition. At that time, counsel for the E/C raised the defense that claimant's petition for modification had not been filed within the two-year limitations period provided in section 440.28....

...s waived unless the defense is asserted at the first hearing involving the claim. The JCC concluded that, because the E/C failed to object to the filing of a claim under section 440.25, Florida Statutes, rather than a petition for modification under section 440.28, Florida Statutes, and failed to timely assert the statute of limitations defense in the pretrial stipulation, the E/C waived the right to object to the defect in the claim or to assert the statute of limitations defense. We hold that the JCC erred in estopping the E/C from asserting the two-year limitations period provided in section 440.28 after the claim was treated by claimant and the JCC as a petition for modification....

...Pinellas Framing & Finishing, 414 So.2d 596 (Fla. 1st DCA 1982), rev. dismissed, 419 So.2d 1195 (Fla. 1982). Once the claim was treated as a petition for modification, however, the JCC erred in not allowing the E/C to assert the limitations period in section 440.28. Section 440.28, Florida Statutes (1979), provides in pertinent part: Modification of Orders....

...ate, continue, reinstate, increase, or decrease such compensation or award compensation... . Unlike the limitations period for filing a claim provided in section 440.19, Florida Statutes, the limitations period for modification of orders provided in section 440.28, Florida Statutes, is jurisdictional and is not an affirmative defense that may be waived by the parties....

...denied, 415 So.2d 1359 (Fla. 1982); University of Florida v. McLarthy, 483 So.2d 723 (Fla. 1st DCA 1985). Thus, assuming that the 1981 order precludes a claim for PTD benefits, the JCC should have allowed the E/C to assert the limitations period of section 440.28 and to put on evidence in proof of that defense once the claim was treated as a petition for modification....

...We cannot approve this interpretation of the nature of finality of compensation orders. As was noted above, a compensation order becomes final for the purposes of rule nisi when the time for appeal passes without the taking of an appeal, but such finality is subject to modification pursuant to Fla. Stat. § 440.28, F.S.A....

...Further, the commission ruled the deputy erred in retaining jurisdiction for a period of one year to determine the ultimate loss of wage earning capacity. It stated that any adjustment of her loss of wage earning *412 capacity after the original adjudication thereof “must be by the avenue of Section 440.28, Florida Statutes, relating to petitions for modification.” From this order both the claimant and the employer, together with its carrier, sought review by this Court....

...und by the full commission. We also rule against claimant’s contention that the deputy properly reserved jurisdiction for one year. As noted by the commission, the proper avenue for future modification of a compensation award is delineated in Sec. 440.28, F.S.A....

...ce. Finally, we note that if the claimant should maintain that his loss of wage-earning capacity subsequently exceeds a 25% PPD based on his physical impairment, the proper method for raising this point is via a petition for modification pursuant to § 440.28, Fla....

...ty Board of Commissioners v. Varnado, 576 So.2d 833, 841 (Fla. 1st DCA 1991). Moreover, the accepted grounds for a modification are either a change in the claimant's condition or a mistake in a determination of a fact in the earlier order. Fla.Stat. § 440.28 (1983)....

...court of competent jurisdiction, is conclusive not only as to every matter which was offered and received to sustain or defeat the claim, but as to *916 every other matter which might with propriety have been litigated and determined in the action. Section 440.28, Florida Statutes (1997), does allow any party in interest to file a petition for modification "on the ground of a change in condition or because of a mistake in a determination of fact." This petition, however, must be filed "prior to...

...he compensation order the party seeks to modify, or at any time prior to 2 years after the date copies of an order rejecting a claim are mailed to the parties. . . ." Id. Thus, even if we were to view the claimant's 2005 petition as a petition under section 440.28, the petition was untimely....

...In addition to temporary total disability benefits, the employers and carriers were ordered to furnish the claimant such remedial surgery and hospital care as was found to be essential to alleviate the disability to claimant’s right knee. April 5, 1959, pursuant to § 440.28, Florida Statutes, F.S.A., claimant instituted this case by filing application for modification of the compensation order of the deputy commissioner dated August 19, 1957....

...ent substantial evidence to establish that he sustained an injury by accident as he alleged. The carrier has produced competent substantial evidence showing that the claimant did not sustain an injury as alleged.” Thereafter petitioner pursuant to § 440.28, Florida Statutes, F.S.A....

...The contentions of the employer and carrier are well taken, and, in our opinion, the evidence submitted by the claimant is cumulative. The fact that the Deputy Commissioner has now changed his mind respecting the instant claim is not a ground for reopening the case under Section 440.28....

....” We are confronted by an appeal by cer-tiorari from the order of the full commission. The point for determination is whether or not the “repair ticket” introduced at the second hearing constituted newly discovered evidence as contemplated by § 440.28, Florida Statutes, F.S.A....

...However, he admitted that his psychiatric analysis was based upon the same complaints given to another psychiatrist, Dr. Forman, whose opinion was the basis of the deputy's prior conclusion that she had suffered no permanent impairment on a psychiatric basis. Section 440.28, Florida Statutes, provides for a modification of a previous compensation order on the ground that the claimant's condition has materially changed since the entry of the previous order....

...On March 30, 1956, the deputy commissioner entered a compensation order based upon a stipulation of the parties that petitioner had reached maximum medical improvement on May 3, 1955, and that as a result of his injuries, had suffered a 20% permanent partial disability of the body as a whole. Pursuant to § 440.28, Fla.Stat., F.S.A., a petition for modification of the order of March 30, 1956, was filed by the petitioner on August 7, 1957, urging that there had been a mistake in a determination of fact and a change in condition....

...mployment and that circumstance continued up to and including the time of the hearing on the petition for modification. Obviously, the continued lack of gainful employment did not represent a change in condition. It is only by virtue of the statute (§ 440.28, Fla.Stat., F.S.A.) that the deputy commissioner is authorized or empowered to entertain petitions for modification of compensation orders that have, by lapse of time, become final, and then only under two specific conditions, viz.: (1) change in condition, and (2) mistake in de *692 termination of fact....

...Counsel for employer/carrier agreed that claimant otherwise would be entitled to permanent total disability benefits, but asserted that the statute of limitations had run with regard to any claim for modification of the February 23, 1987, order. Claimant maintained that the section 440.28 two-year statute of limitations runs from any compensation order, not just the order sought to be modified, and that the petition for modification was timely, because it was filed within two *1068 years of the January 14,1988, order awarding wage loss benefits. At the hearing, the discussion focused on the language of section 440.28, and the construction accorded that provision by this court’s opinion in Ford v....

...The judge of compensation claims concluded, on the basis of the “most favorable remedy” doctrine, that the claim was not time barred, and awarded permanent total disability benefits pursuant to the stipulation of employer/carrier. The statute applicable, section 440.28, Florida Statutes, (1983), provides in part: Modification of orders....

...courts should resolve any doubts as to statutory construction in favor of providing benefits to injured workers.” Id. See also Norwood Shell, Inc. v. Forbing, 455 So.2d 504 (Fla. 1st DCA), review denied, 459 So.2d 1041 (Fla.1984), determining that section 440.28 “is susceptible to disparate interpretations,” and thus warrants application of the “most favorable remedy doctrine” calling for a construction most favorable to the employee claimant....

...ecific benefits that were denied in a prior compensation order, must be filed within two years of that order. 467 So.2d at 1052 . An examination of the rationale set forth in Daniel v. Holmes Lumber Co. indicates that the construction we accorded to section 440.28 in Ford v. Alexander, has been rejected by the Florida Supreme Court. Under Daniel , any claim filed within two years of the last voluntary compensation payment is timely within the contemplation of section 440.28....

PER CURIAM. This is an appeal by certiorari from a judgment of the Florida Industrial Commission approving an order of deputy commissioner denying a petition filed with him under .§ 440.28, Florida Statutes, F.S.A. alleging that there had been a change in condition or a mistake in fact made as to petitioner in a compensation order dated January 20, 1959. It is true that § 440.28, Florida Statutes, F.S.A., authorizes modification of compensation orders under § 440.28, Florida Statutes, F.S.A., provided application therefor is made within two years of the date of such order and other provisions of the statute are complied with....

pursuant to the modification provisions of F.S. Section 440.28, F.S.A.

...sponte, and the following opinion is substituted for clarification.  In this workers’ compensation matter, Petitioner/Claimant seeks a writ of mandamus, requesting this Court order the Judge of Compensation Claims (JCC) to schedule a hearing on an action pending under section 440.28, Florida Statutes (2009)....

...On the date of the scheduled final hearing, August 29, 2013, the JCC entered an order cancelling the hearing, dismissing Claimant’s PFB, declaring the 2 proceeding before him to be a modification proceeding under section 440.28, and instructing the parties to coordinate a hearing to address modification of the order awarding Claimant PTD benefits. On September 3, 2013, the presiding federal court judge granted Claimant’s motion to set aside the se...

...Section 440.25(4)(c) requires the JCC to give the parties at least 14 days’ notice of the final hearing. Here, the JCC, in the August 2013 order, declared the proceedings were “a proceeding to modify the final compensation Order rendered January 26, 2012.” Section 440.28, Florida Statutes (2009), provides that proceedings to modify orders are to be conducted “in accordance with the procedure prescribed in respect to claims in s....

...he was a work-release prisoner, and that the employer did not afford to Pryor all the advantages of the other employees. Relying upon this information, the deputy found a mistake of fact and modified the claimant’s average weekly wage. We reverse. Section 440.28, Florida Statutes, which authorizes a petition for modification when there has been a mistake of fact, is not intended to afford the claimant a vehicle to relitigate an identical issue which has been previously determined solely upon a...

modification of the original award under Fla.Stat. § 440.28, F.S.A., was based upon a mistake in fact: the

whether there was a change in condition under Section 440.28, Florida Statutes (1979) justifying modification

...l not be subject to the informal dispute resolution process or specificity review by the docketing judge. Claims shall be limited to the following subjects: (1) Modification of Prior Compensation Order. Application for modification of an order under section 440.28, Florida Statutes, shall be substantially in the form of a petition under section 440.192(2), Florida Statutes, and shall include a request for a hearing....

...ts payable under the Florida Workers’ Compensation Law because of the alleged industrial accident and injury referred to in this order is fully and forever discharged and released. C. This order shall not be subject to modification or review under section 440.28, Florida Statutes....

...ts payable under the Florida Workers’ Compensation Law because of the alleged industrial accident and injury referred to in this order is fully and forever discharged and released. C. This order shall not be subject to modification or review under section 440.28, Florida Statutes....

...The responsibility of the employer and its carrier (or servicing agent) for future medical expenses remains as . it now is for the time and in the manner provided by law. D. Modification. This order shall not be subject to modification or review under section 440.28, Florida Statutes....

...sion of medical benefits under section 440.13, Florida Statutes, because of the industrial accident and injury referred to in this order is fully and forever discharged and released. C. This order shall not be subject to modification or review under section 440.28, Florida Statutes....

...forts; (3) the order of October 15, 1991, was procured through fraud and misrepresentation because claimant was not credible and presented false testimony; (4) an order obtained through fraud and misrepresentation is grounds for modification, citing Section 440.28, Florida Statutes and Oakdell v....

...e of the hearing. This factual determination was not even at issue at the time of the second hearing on October 15, 1992. The JCC clearly exceeded the scope of the issues presented at the second hearing. Even if a modification were permissible under Section 440.28, Florida Statutes, such modification must conform with the procedures stated in Section 440.25(3)(c), Florida Statutes, which provides that the parties shall be given 15 days notice before hearing a motion for modification of a compensation order....

...Therefore, the employer may exclude the value of its contributions to retirement from the calculation of claimant’s average weekly wage under section 440.14(3) so long as such consideration is provided and subject, of course, to any right to modification which may in the future exist under section 440.28, Florida Statutes, based on changed conditions cognizable under that section such as, for example, termination of claimant’s state employment....

PER CURIAM. The claimant appeals a workers’ compensation order effecting modification pursuant to section 440.28, Florida Statutes, based on a change in condition....

...Wholesale Tours International v. Courtney, I.R.C. Order 2-3126 (1977) and Gray Drugstores, Inc. v. Herring, 9 F.C.R. 85 (1975). If the Claimant’s thrombo-phlebi-tis does affect other parts of his body in the future, his remedy is to seek modification under F.S. 440.28.......

...0.54 was a penalty and not compensation within the terms of the Workmen's Compensation Act and -that inasmuch as more than one year had expired since the date of the last payment of compensation the claimant was not entitled to reopen the case under Section 440.28, and was not entitled to further benefits under Workmen’s Compensation Act....

...The point for determination may be stated as follows: Was payment of all additional payments by the employer October 31, 1952, as provided under Section 440.54, Florida Statutes 1941, F.S.A., such a payment of “compensation” within the purview of the Workmen’s Compensation Act, Section 440.28, as will enable claimant to reopen the case after the one year period provided therein has expired? The Industrial Commission held that the payment made October 31, 1952 was a pen-’ alty, that it was not the....

...It is not to be overlooked that Florida Art Stucco Corporation, the employer, is no longer liable under Section 440.54 Florida Statutes, F.S.A., by reason of the compromise stipulation filed herein. This brings us to the meaning of “compensation” as used in Section 440.28 Florida Statutes, F.S.A. The application of the injured minor for modification of the award in the instant case was filed under F.S. *896 Section 440.28, F.S.A., which, at the time of the filing, provided a period of one year after the date of the last payment of compensation for a review of the case on the ground of a change of condition or because of a mistake in a determination of fact. The appellant’s contention is that the payment by the employer under Section 440.54 was a payment of “compensation” within the meaning of that term as used in Section 440.28 F.S.1941, F.S.A., the pertinent part being as follows: “Upon their own initiative or upon the application of any party in interest, on the ground of a change in condition or because of a mistake in a determination of fact the commiss...

...The use of the term “after the date of the last payment of compensation” can only have reference to the party who last paid such money allowance and cannot be expanded to include the carrier whose separate responsibility under the Act has long since ended. There is nothing inconsistent in filing a claim under Section 440.28 against the carrier while the employee is currently receiving the penalty payments under Section 440.54 from the employer. As pointed out previously, the liability of the carrier under Section 440.28 is separate and distinct from liability of the employer under Section 440.54....

...d by Dr. Slomka. Holzhauer filed the instant claim in August of 1985 seeking further medical treatment. It is the E/C’s position that Holzhauer erred in filing a new claim and should have proceeded by way of a petition for modification pursuant to Section 440.28, Florida Statutes (1983). The E/C further contends that all care provided to an employee once a date of MMI has been determined must be considered palliative in nature, and such care cannot toll the statute of limitations contained in either Section 440.19(l)(b) or Section 440.28, Florida Statutes (1983). We do not feel it is necessary to make a direct determination of the relevancy of Sections 440.28 and 440.19(1)(b) in the present case, as it can be decided on the principle announced in Daniel v....

...In this case, we concur with the following statement made by Judge Wentworth in her specially concurring opinion to General Electric Co. v. Spann, 479 So.2d 289 (Fla. 1st DCA 1985): In the present case I would affirm the award of medical treatment simply because, even assuming § 440.28 might apply to a medical claim, and whatever might be its effect after an order finding MMI, the parties clearly did not treat the 1980 order as one terminating remedial care during the years preceding the current claims....

...ermination was through direct appeal. Since they did not file a timely appeal, the E/C cannot now go back and obtain relief unless there was a mistake of fact on the part of the deputy. City of Hialeah v. Cascardo, 443 So.2d 448 (Fla. 1st DCA 1984). Section 440.28, Florida Statutes (1975), allows a modification based upon “a mistake in the determination of a fact.” This has been interpreted to mean “relief by modification for mistake cannot be granted merely because different facts presented to the judge might have produced different results.” City of Vero Beach v....

...bject hearing, and the order *502 was never modified. * Significantly, in her brief Claimant fails to point to an application, claim, or petition for modification that she filed so as to formally request modification of the November 2009 order under section 440.28, Florida Statutes — as would be required for her to obtain relief by way of modification. See § 440.28, Fla....

...uted a duly filed application or petition for modification of the 2009 order, such a request would be untimely, because the November 2009 order denied and dismissed Claimant’s request for a change in physician, and awarded no benefits to Claimant. Section 440.28, provides that an application for modification is required to be filed within two years “after the date copies of an order rejecting a claim are mailed to the parties.” See § 440.28, Fla....

...v. McLarthy, 483 So.2d 723, 726 (Fla. 1st DCA 1985) (explaining application for modification must be filed within two years after entry of order rejecting claim, or, if award is granted, within two years after last payment pursuant to order). Under section 440.28, even had a petition for modification been filed in December 2011, it would have been time-barred because it was filed more than two years after the entry of an order rejecting the claim upon which modification was sought....

...1st DCA 1979) (quashing judge of industrial claim’s order vacating and republishing prior order, holding that “[t]he earlier order had become final and the judge was without jurisdiction to amend, vacate, or republish it.”). Moreover, we cannot construe the successor JCC’s correction to have been a modification under section 440.28, Florida Statutes (1991). By its very terms, Smith’s motion to correct scrivener’s error merely requested the correction of a clerical mistake; it did not allege a change in condition or mistake in a determination of fact required by section 440.28....

rejecting a claim are mailed to the parties. Section 440.28, Florida Statutes (1979). Clearly, the time

...More importantly, the order is not supported by competent substantial evidence. For example, the JCC concluded claimant had not yet reached MMI. This finding contradicts the finding of the unap-pealed March 23, 1988 order that claimant was at orthopedic MMI. Pursuant to § 440.28 the JCC is entitled to modify a previous order on his or her own initiative,, but the modification must be based upon a change in condition or mistake of fact by the JCC....

the time required by the law. The Statute, Section 440.28, Florida Statutes of 1941, provides in part

...Since the deputy commissioner’s order with respect to the award had become final under the statute, the full commission was without authority to consider or amend it. Fournigault v. Jackson Memorial Hospital, Fla.1956, 87 So.2d 102 , and H. W. Sperry, Inc. v. Matthews, Fla.1954, 76 So.2d 487 . Section 440.28, Florida Statutes, F.S.A., is not applicable here because, although providing a method of review by the full commission within two years of the last payment of compensation, it is limited in its scope to cases in which a change in condition or a mistake in a determination of fact is involved....

...Claims shall be subject to adjudication by the judge or reviewing court but shall not be subject to *866 the informal dispute resolution process or review by the docketing judge. Claims shall be limited to the following subjects: (1) Modification of Prior Compensation Order. Application for modification of an order under section 440.28, Florida Statutes, shall be substantially in the form of a petition under section 440.192(2), Florida Statutes, and shall include a request for a hearing....

...e Florida Workers’ Compensation Law because of the alleged industrial accident and injury refereneedred to in this order herein is hereby fully and forever discharged and released. C. This order shall not be subject to modification or review under section 440.28, Florida Statutes....

...e Florida Workers’ Compensation Law because of the alleged industrial accident and injury refereneedred to in this order herein is hereby fully and forever discharged and released. C. This order shall not be subject to modification or review under section 440.28, Florida Statutes....

...The responsibility of the employ *916 er and its carrier (or servicing agent) for future medical expenses remains as it now is for the time and in the manner provided by law. D. Modification. This order shall not be subject to modification or review under section 440.28, Florida Statutes....

...tion 440.13, Florida Statutes, because of the industrial accident and injury referenee-dred to in this order herein is hereby fully and forever discharged and released. [[Image here]] C.This order shall not be subject to modification or review under section 440.28, Florida Statutes....

...The petitioner seeks review of an order of the commission reversing an award of temporary total disability compensation for the months of February and March 1963. The commission found that this claim for additional compensation, filed in October 1964, was precluded by the terms of F.S. Section 440.28, F.S.A., providing a compensation award may be modified only upon application “prior to two years after the date of the last payment of compensation’’ pursuant thereto....

...on or remedial treatment. In view of the clear distinction made in this instance and throughout the act between medical benefits and disability compensation, we do not find error in the cited decision nor can we ignore the explicit provision of Sec. 440.28 by which a determination of disability compensation becomes final and unalterable unless modified upon *762 petition filed within the specified time after the last payment of compensation. Other contentions by petitioner in contest of the orders of the commission and deputy in this cause have been considered and found to be without merit. Certiorari denied. THORNAL, C. J., and O’CONNELL, CALDWELL and ERVIN, JJ., concur. .“440.28 * * * Upon their own initiative or upon the application of any party in interest, on the ground of a change in condition or because of a mistake in a determination of fact the commission may at any time prior to two years after the date of the...

...d petitioner’s claim for additional benefits. In reaching this conclusion the full commission agreed with the deputy that the petition for modification, in so far as it pertains to compensation, is barred by the statute of limitations provision of § 440.28, Florida Statutes, F.S.A., because the petition for modification was filed more than two years after the date of last payment of compensation....

held that the change of condition provision of Section 440.28 Florida Statutes is designed to afford relief

was entitled to an award of a 20% penalty under § 440.28(8), where the e/c failed to pay the sums due until

the original order as allowed under Fla.Stat. § 440.28, F.S.A., which petition was denied by the Judge

...arction was in fact precipitated by an unusual employment-related exertion, and that claimant’s disability is compensable. Although the new order is couched in terms of modifying the old order “because of a mistake in a determination of fact,” section 440.28, Florida Statutes (1981), the new order represents a simple reweighing of the old evidence and a deputy’s change of mind on the legal effect of the evidence reweighed....

...whole settlement, which was approved by the Judge of Industrial Claims in July, 1964. Subsequently, petitioner’s condition allegedly worsened, with increasing pain and disability and decreasing ability to earn a livelihood. Pursuant to Fla. Stat. § 440.28 , F.S.A., which permits modification of compensation awards on grounds which include change of condition, petitioner in April, 1966, petitioned to modify the compensation award....

...Hayner Properties, Inc., has filed a petition for permission of this Court to apply to the Florida Industrial Commission for a writ of error coram nobis. The prayer of the petition is denied without prejudice to any rights which the petitioner might have to proceed under Section 440.28, Florida Statutes, F.S.A....

...r entered October 21, 1958, and held that Rule 3 of the Commission’s Rules did not apply since it was necessary to take additional testimony. The Full Commission reversed, holding that Rule 3 does apply to modification pro *515 ceedings under F.S. § 440.28, F.S.A., that once a claim for modification is filed the time requirements of Rule 3 apply to it just as they applied to the original claim....

...The prior orders are final. The failure of the JIC’s secretary to date the certificates of service does not affect the finality of the orders. No assertion is made that the orders were not promptly mailed or received. 6. What post-order relief is available? None here. Section 440.28, Florida Statutes (1977), allows a petition for modification based upon a mistake of fact....

deputy commissioner granted the claimant’s Section 440.28, Florida Statutes, petition for modification

...sion, reported at 586 So.2d 1132 (Fla. 1st DCA 1991) CHolder II). In Holder III, the Florida Supreme Court, answering a question certified by this court, held that under the unique facts presented, section 440.19(l)(a), Florida Statutes, rather than section 440.28, governed Holder’s claim for temporary disability during knee replacement surgery and the impairment resulting therefrom, despite the fact that under an earlier order maximum medical improvement had been determined, and permanent disability compensation had been awarded and paid....

...1st DCA 1981) {Holder I), although the order was otherwise affirmed. When Holder, some eight years later, presented his claims connected with his knee replacement surgery, the JCC was confronted by the employer and carrier’s (E/C) defense that the claim was barred by section 440.28, because it was not filed within two years of the last payment of compensation....

...e August 2, 1984 order. We concluded, however, that the finding of maximum medical improvement (MMI) in the order, which was not appealed, precluded a claim for additional compensation benefits unless the claim was brought within the time allowed by section 440.28, Florida Statutes, which applies to modifications of prior orders....

...We specifically cited the McLarthy decision for the proposition that, generally, temporary total disability benefits are not available to an injured claimant once MMI has been reached, and we further cited McLarthy and Holder II as requiring a timely application for modification under section 440.28 after a finding of MMI....

...Claims shall be subject to adjudication by the .judge or reviewing court but shall not be subject To the informal dispute resolution process or review by the docketing .judge. Claims shall be limited to the following subjects: (1) Modification of Prior Compensation Order. Application for modification of an order under section 440.28, Florida Statutes, shall be substantially in the form of a petition under section 440.192(2), Florida Statutes, *636 and shall include a reo[uest for a hearing....

...It eedifies-existing- procedure to permit the-deputy commissioner to-adj-udicate- issues as they become ripe. RULE 4.058, PETITION-F-OR MODIFICATION; PETITION FOR REIMBURSEMENT FROM — SPECIAL DISABILITY TRUST FUND ■Petitions- for modification pursuant-to-seetion ■ 440.28, Florida Statute^ — a-nd-petitions for-reimbursement from the Special Disability-Trust Fund pursuant to section 44&49(-2-)-,--Flo-rida-Statutes — shall be made substantially in the form of a claim....

...(C) The responsibility of- the employer and its -carrier (or servicing agent) for future medical expenses remains -as-it now- is for the time and in the manner provided by law. *703 (D) This order shall not be subject to modification or review-under-section 440.28, Florida Statutes....

...lity of-the-employer and its carrier (or servicing-agent) for future' medical expenses, training, and edueation remains as it-now is for the time-and in the manner provided-by law* (D) This order-shall not be subject to modification or-review-u-nder-section 440.28, Florida Statutes* DONE AND ORDERED in Chambers, Judge of-Compensation Claims THIS IS TO -CERTIFY that the above order was entered in the office of the judge of compensation claims and -a-eopy was served by U.S* Mail on each party and...

...nt or provision-of benefits of any-e-lass-(including medical care) because-of the above-captioned industrial accident and-injury-shall be fully and forever discharged and released. (C) This order shall not be-subject to modification or review- under section 440.28, Florida Statutes....

...cing-agent)-for any payments of workers' compensation-benefits- because of the ■ above-captioned-industrial accident and injury shall be fully and forever diseharged and released. (C) This order-shall-Hot-be subject to modification or review under section 440.28, Florida Statutes* DON-HAND ORDERED in Chambers, Judge of Compensation Claims THIS IS TO ■ CERTIF-¾ that the above order was entered in the office of the judge of compensation claims and-a* copy-was -served by U.S....

...rvicing-agent-)-for any payments of workers^-eompensation benefits because of the above-captioned industrial accident and injury shall be fully-and forever discharged and released.- (C) This order shall-not-be subject to modification or r-eview-undensection 440.28, Florida Statutes....

...its payable under the Florida Workers’ Compensation Law because of the alleged industrial accident and injury referenced herein is hereby fully and forever discharged and released. C. This order shall not be subject to modification or review under section 440.28, Florida Statutes....

...its payable under the Florida Workers’ Compensation Law because of the alleged industrial accident and injury referenced herein is hereby fully and forever discharged and released. C. This order shall not be subject to modification or review under section 440.28, Florida Statutes....

...The responsibility of the employer and its carrier (or servicing agent) for future medical expenses remains as it now is for the time and in the manner provided by law. D. Modification. This order shall not be subject to modification or review under section 440.28, Florida Statutes....

...of medical benefits under section 440,13, Florida Statutes, because *712 of the industrial accident and injury referenced herein is hereby fully and forever discharged and released. C. This order shall not be subject to modification or review under section 440.28, Florida Statutes....

...It codifies existing procedure to permit the ©deputy ©commissioner to adjudicate issues as they become ripe. RULE 4.058. PETITION FOR MODIFICATION; CLAIMPETITION FOR REIMBURSEMENT FROM SPECIAL DISABILITY TRUST FUND Petitions for modification pursuant to Ssection 440.28, Florida Statutes, and petitions for reimbursement from the Special Disability Trust Fund pursuant to Ssection 440.49(2), Florida Statutes, shall be made substantially in the form of a claim....

...sed. 3t(C) The responsibility of the employer and its carrier (or servicing agent) for future medical expenses remains as it now is for the time and in the manner provided by law. 4JD) This order shall not be subject to modification or review under Ssection 440.28, Florida Statutes....

...(C) The responsibility of the employer and its carrier (or servicing agent) for future medical expenses, training, and education remains as it now is for the time and in the manner provided by law. (D) This order shall not be subject to modification or review under section 440.28, Florida Statutes....

...vision of benefits of any class (including medical care) because of the above:captioned alleged industrial accident and injury shall be fully and forever discharged and released. ⅛(0 This order shall not be subject to modification or review under Ssection 440.28, Florida Statutes....

...ing agent) for any payments of worker’s^ compensation benefits because of the above:captioned industrial accident and injury shall be fully and forever discharged and released. 3t(C) This order shall not be subject to modification or review under Ssection 440.28, Florida Statutes....

...rvicing agent) for any payments of workers’ compensation benefits because of the above-captioned industrial accident and injury shall be fully and forever discharged and released. (C) This order shall not be subject to modification or review under section 440.28, Florida Statutes....

proceeds under a completely different statute, Section 440.28, Florida Statutes (1977). Absent adjudication

...Eden Roc Hotel, 140 So.2d 104 (Fla.1962). Should either the employer/carrier or the claimant subsequently maintain that the claimant’s permanent disability has decreased or increased, the proper avenue for modification of a compensation award is a petition for modification pursuant to Section 440.28, Florida Statutes, rather than a deputy commissioner’s retention of jurisdiction....

...efore complaining of the inadequacy of the same. Having examined the record and briefs and having heard oral argument, we conclude there exists competent substantial evidence to justify a petition for modification of the prior order pursuant to F.S. Section 440.28, F.S.A....

...th his heart condition, together with the evidence that the manifested result of Petitioner’s condition had rendered him incapable of finding work in a stable labor market is sufficient to entitle Petitioner to the type relief contemplated by F.S. Section 440.28, F.S.A. The operative purposes of Section 440.28, were ably defined by Mr....

...In these circumstances, to hold that Petitioner is not entitled to modification of the earlier determination so as to conform his com *732 pensation award to the existing realities of his disability would unduly thwart the liberal purpo_ses sought to be accomplished by F.S. Section 440.28, F.S.A....

...December 7, 1961, supplemented by the stipulated disposition. In remanding the case, however, it should be without prejudice to the rights of the claimant to any relief which he might be entitled as the result of a changed condition and pursuant to Section 440.28, Florida Statutes, F.S.A....

...an had prescribed such care. In the alternative, the JCC ruled that if this matter is to be treated as a request for modification of the previous order, then the E/C has demonstrated a change in condition justifying a decrease of attendant care. See § 440.28, Fla....

...Despite the JCC's lack of clarity on the issue, this case presents a petition for modification, which must be supported by a "change in condition” from the time of the original order, or a "mistake of fact” relating to the institution of that order. § 440.28, Fla. Stat. (2004). Here claimant was awarded 14 hours of attendant care, seven (7) days per week, at a compensation rate of $12.00 per hour. These determinations are res judicata and may not be changed without meeting the requirements of section 440.28, Florida Statutes....

claimant had grounds for modification under section 440.28, Florida Statutes, based on an increase in

...4 Decisions with respect to untimely amendments of orders which have not been vacated therefore do not control. 5 Affirmed. SHIVERS, C.J., and ERVIN, J., concur. . The order recites a "duty to make corrections ... so as to achieve substantial justice," and inappropriately finds "a petition to modify pursuant to Fla.Stat. 440.28 to correct a mistake of fact ......

...adequate job search. The refusal, however, was without prejudice, pursuant to Flesche v. Interstate Warehouse, 411 So.2d 919 (Fla. 1st DCA 1982), to raise the issue again at a later date. Subsequently, Lyons petitioned for modification, pursuant to Section 440.28, Florida Statutes (1983), alleging a change in physical condition and wage earning capacity....

...ruling involved an interpretation of law, review is de novo. See Mylock v. Champion Int’l, 906 So. 2d 363, 365 (Fla. 1st DCA 2005). 2 Neither of the parties raised argument that the order approving the joint stipulation was subject to modification under section 440.28, Florida Statutes. 4  A claimant has the burden to prove entitlement to workers' compensation benefits....

...t it would have been necessary that claimant seek to modify the 1989 order, due to the continuing nature of the award. See Hardrives of Delray, Inc. v. Stimely, 670 So.2d 108 (Fla. 1st DCA 1996). However, the JCC erred in granting modification under section 440.28, Florida Statutes, because the claimant failed to establish that modification is appropriate in this case....

...ederal minimum wage. Yet the error in the 1989 decision stemmed from an incorrect interpretation of the statute controlling the rates of pay to family members who provide attendant care. That was not a mistake of fact justifying a modification under section 440.28; it was a mistake of law, as this court made clear in Buena Vida Townhouse Assoc....

...As to the latter award, the carrier argues that the judge could not modify his prior order apportioning out costs relating to the noncompensable surgery because the later order was not designed to correct a mistake of fact or a change in condition, the only grounds for modifying compensation orders. See Section 440.28, Florida Statutes (1977)....

...Ballweg’s testimony was that the claimant' suffered from an ‘impact seizure’ related to the claimant being struck by an automobile.” We reverse the JCC’s denial of Dade’s motion to reopen the case. As a preliminary matter, we find that the motion is, in essence, a petition for modification. See section 440.28, Florida Statutes (1989); see also, Pitts v....

...overed evidence was similar to other testimony and would have no material difference in the outcome of the case. Milgen Development is not a workers’ compensation case, and it has little or no application to a petition for modification pursuant to section 440.28....

...aimant prevailed on several issues at the hearing held on June 9, 1980, and therefore, claimant did not have until two years after the April of 1981 order in which to file his petition for modification. We disagree with the deputy’s finding. *1029 Section 440.28, Florida Statutes, provides in pertinent part that a petition for modification may be brought at any time prior to two years after the date copies of an order rejecting a claim are mailed to the respective parties....

...rety of claimant’s position in requesting compensation, and therefore, if a claimant prevails on several issues at a hearing, specifically including the compensability of a claim, then a claimant’s claim is not rejected within the terminology of section 440.28. We do not interpret section 440.28 so narrowly. Rather, we find and hold that the April of 1981 order did reject claimant’s alternate claims for continuing temporary total disability benefits and permanent disability benefits within the meaning of section 440.28....

...Tweed, found that a substantial change in Peterson’s condition had occurred from a neurological standpoint, and granted an increase in permanent partial disability benefits to 25 percent based on loss of wage earning capacity- The change of condition provision in Section 440.28, Florida Statutes (1981), is designed to afford relief to the claimant whose condition becomes progressively worse than anticipated by the original diagnosis or is the product of evidentiary factors not known at the time of the initial proceedings....

...upon which the mandate was filed in Knight I and that claimant was therefore entitled to retroactive compensation benefits at the rate of $400.14 per month from May 24, 1980 through June 23, 1986. On appeal, the City of Miami strenuously urges that section 440.28, Florida Statutes, allowing for modification of previously entered orders on the ground of change of condition or because of a mistake in a determination of fact, does not provide for modification where there has been a mistake or change in law....

...instead of another. Andrews v. C. B. S. Division, Maule Industries, Fla., 129 So.2d 132 . The order of the deputy here adequately reflected his reasons for accepting the lay testimony. There is nothing peculiar about a modification proceeding under Section 440.28, Florida Statutes, F.S.A., that requires a different rule....

...Respondents have made no such showing in the present case. This conclusion does not foreclose a future showing by respondents that there has been a change in circumstances demonstrating claimant is no longer permanently and totally disabled and is capable of obtaining gainful employment. Fla.Stat. § 440.28, F.S.A., provides respondents such a remedy by way of petition for modification....

...ous appeal. We have mentioned possible statutory exceptions. An illustration of such an exception would be the power'granted to the respondent commission to modify previously entered compensation orders when done in accordance with the provisions of Section 440.28, Florida Statutes, F.S.A....

...ed with compensation before then paid for permanent partial disability. Based on this record the petitioners have chosen two points for consideration and resolution by this court: (1) Whether or not additional permanent disability compensation under Section 440.28, Florida Statutes, F.S.A., can be allowed on the theory that there had been a change of condition for the worse when any such change even if established did not result in a decrease of earning capacity, and (2) Whether or not in view o...

capable of obtaining gainful employment. Fla. Stat. § 440.28, F.S.A., provides respondents such a remedy by

This amendment was permissible pursuant to section 440.28, Florida Statutes, which allows modification

...ity over the original twenty percent formerly agreed upon and thereafter the stipulation was approved by the deputy commissioner by order dated May 28, 1959. Two years later claimant filed a petition to modify this order pursuant to Florida Statutes Section 440.28, F.S.A., claiming a change in physical condition and a mistake in the determination of fact in that impairment of the claimant’s wage earning capacity had proved greater than the percentage determined on the 28th of May, 1959....

...d been paid in monthly installments (December 4, 1964) and ending at the date of the hearing of the instant petition, June 10, 1965. Inasmuch as the Full Commission must be reversed, we deem it advisable to dispose of the interest problem. Fla.Stat. § 440.28, F.S.A....

...In the latter case the correction is effected to make amends for an error in the initial or former determination. In the former the new award is authorized because of some change that has occurred since entry of the former order. In an order under § 440.28, supra, the deputy may designate a prior date from which the modifying order should be effective....

this order which we here review. Our statute, Section 440.28, Florida Statutes, F.S.A., authorizes the Commission

...statute of limitations tolled by reason of claimant’s incompetency. The chief commissioner, therefore, granted the petition to modify pursuant to section 440.-28, Florida Statutes (1981), and reinstated the decretal portion of the original order. Section 440.28 provides a statutory exception to the doctrine of res judicata in workers’ compensation cases....

...a greater or more favorable volume of evidence as to the identical issue upon which to base his contention. Id. at 387-88 (footnote omitted). In the instant case, the record does not reveal a mistake in a determination of fact within the meaning of section 440.28....

...Our conclu *941 sion is bolstered by the fact that no new evidence was introduced at the petition for modification hearing to support appellee’s claim of mistake in a determination of fact. In Cleveland v. Everson, 415 So.2d 763 (Fla. 1st DCA 1982), we stated: Section 440.28, Florida Statutes (1977), allows a petition for modification based upon a mistake of fact....

...According to the judge, his finding of permanent total disability required that he modify the prior findings that Causey had earlier reached MMI on September 28, 1985, and that his condition was not economically disabling. However, the judge also found that the claim was timely for purposes of the limitations period in section 440.28 because it was filed within two years of the filing date of the first mandate issued by this court on November 7, 1989....

...dge’s finding that Causey carried his burden of establishing a change of condition for purposes of modifying the prior compensation orders. Causey, however, contends that to obtain the benefits sought, it was not necessary for him to proceed under section 440.28. Under the facts of the present case, we conclude that modification was not necessary as a predicate for the benefits sought and awarded by the judge. Cases dealing with the application of section 440.28, Florida Statutes (1985), which permits modification of compensation orders based on mistake of fact or change of condition establish that “ ‘[e]xcept to the extent modification is permitted by section 440.28, compensation or *468 ders are governed by the same principles of res judicata, estoppel by judgment, and the law of the ease as are judgments of a court.’ ” Holder v....

...Denny’s Restaurant, 328 So.2d 830, 838 (Fla.1976); Hodges v. State Road Dept., 171 So.2d 523, 525 (Fla.1965); Power v. Joseph G. Moretti, Inc., 120 So.2d 443, 445 (Fla.1960); Boston v. Budget Luxury Inns, 474 So.2d 355, 357 (Fla. 1st DCA 1985). In Caron , this court recognized that resort to section 440.28 is necessary only in those cases where the requisites for application of one of the above-enumerated doctrines exist. We explained: Section 440.28 merely serves to allow modification, upon specified conditions, of compensation orders which would otherwise bar subsequent claims for workers’ compensation benefits under principles of res judicata, estoppel by judgment, or law of the case. Therefore, the existence of the requisites for application of one of these doctrines must be present before it becomes necessary for a claimant to resort to Section 440.28 for relief....

...necessary for application of the doctrine of res judicata.” Holder, 610 So.2d at 1267 . Likewise, in that circumstance, the doctrines of estoppel by judgment and the law of the case are equally inapplicable. Id. For these reasons, resort below to section 440.28 was unnecessary....

...e prior to the expiration of the said ninety-day period. In no event shall the time be extended on the application of any party beyond eight months from the date set for the first hearing to take testimony. This does not apply to cases arising under section 440.28, Florida Statutes, or to cases appealed and reversed or modified where it becomes necessary (sic) to take additional testimony, or to cases where proof is presented to the judge showing that the party is in such physical or mental state that he cannot testify during the period above limited....

...1 However, we find that the *975 question of compensability of her back condition was clearly an issue and that competent substantial evidence supports the judge’s determination. ERVIN and WENTWORTH, JJ., concur. . Appellant has not raised the specific issue of the application of Section 440.28, Florida Statutes, to the judge's handling of this matter by denying compensability of appellant’s back condition "at this time" and "without prejudice" to the assertion of compensability of the back condition at a later date....

...be paid to the Claimant from 10/18/06 through 11/22/06 at the rate of $683.00 a week rather than at $183.00 a week due to a mistake of fact as to the amount of wages paid to Claimant by the Employer for those weeks. Analysis The applicable statute, section 440.28, Florida Statutes (2006), provides: Upon a judge of compensation claims' own initiative, or upon the application of any party in interest, on the ground of a change in condition or because of a mistake in a determination of fact, the j...

of the circuit court. Except to the extent section 440.28 permits modification in cases of a change of

...proving the stipulation of the parties as to the amount and extent of compensation and directed the parties to comply with the provisions of the stipulation and order. Shortly thereafter, the appellee returned to work and the appellants, pursuant to § 440.28, Fla.Stat., F.S.A., petitioned for a modification of the June 4, 1962, order, which petition for modification was denied by the deputy commissioner....

...he parties are ordered to comply therewith. It is clear from this order that the stipulation and its terms were approved and effectively incorporated therein and, from that point forward, governed the rights of the parties until modified pursuant to Section 440.28....

...tal disability until the expiration of Employee’s life.’ ” 481 So.2d at 77-78 . Accordingly, it was clear that “the parties intended to discharge all liability in exchange for lump-sum payment and that no modification should be allowed under section 440.28, Florida Statutes (1981).” 481 So.2d at 79 ....

...However, the Division could not become a party and obtain a ruling that completely overrules a prior order of a judge of compensation claims and defeats the intent and purpose of both parties as approved by that judge. That order had become final and, as the judge and the Division note, is no longer modifiable under Section 440.28....

...If the Division had received prompt notice of the new arrangement and had any questions regarding its legality, it could have sought a modification of the order or a determination as to the Trust Fund’s obligation to make supplemental payments before the time for modification under Section 440.28 had run....

...sion bearing date March 28, 1968. The question presented for our consideration on review of this cause is whether the employee/claimant has sufficiently demonstrated a change of condition so as to sustain a petition for modification pursuant to F.S. Section 440.28, F.S.A....

...problem had not changed, since rendition of the order sought to be modified. In reaching its conclusion, we find the Commission has narrowly construed “change of condition” as a ground for the allowance of a petition for modification under F.S. Section 440.28, F.S.A., and has attempted to reweigh the testimony and substitute its evaluation and opinion of the evidence for that of the Judge of Industrial Claims....

...whether there is competent substantial evidence indicating a worsening of claimant’s psychiatric condition. In Sauder v. Coast Cities Coaches, Inc. (Fla.1963), 156 So.2d 162, 165 , this Court commented on the change of condition provision in F.S. Section 440.28, F.S.A....

...ior to the expiration of the said ninety-day period. In no event shall the time be extended on the application of any party beyond eight months from the date set for the first hearing to take the testimony. This does not apply to cases arising under Section 440.28, F.S.A., or to eases appealed and reversed or modified where it becomes necessary to take additional testimony, or to cases where proof is presented to the Deputy Commissioner showing that the party is in such physical or mental state that he cannot testify during the period above limited....

review, except pursuant to the provisions of Section 440.28, Florida Statutes, F.S.A. “For the same reasons

...Regarding issue two, the deputy apparently agreed with the position of the e/c that because the petition for modification did not list specific medical bills as outstanding, the petition did not toll the two-year statute of limitations required by Section 440.28, Florida Statutes, 1 for modification of orders....

...dification was filed June 27, 1979, clearly within the two-year *50 limitation period. The petition alleged a change in circumstances and a mistake of fact — conditions which clearly meet the requirement for tolling the two-year period provided in Section 440.28....

...Since the claim for medical expenses has not lapsed, the deputy should conduct such further proceedings as he finds necessary in order to determine the claimant’s entitlement to additional medical payments from the e/c. AFFIRMED in part, REVERSED in part and REMANDED with instructions. SHIVERS and ZEHMER, JJ., concur. . Section 440.28, Fla.Stat....

...Walt Disney World appeals the Judge of Compensation Claims’ (JCC) order which, after finding the Claimant suffered a significant change in condition, granted a modification of a prior order denying permanent total disability (PTD) benefits pur *829 suant to section 440.28, Florida Statutes (2001)....

...open for re-evaluation of the 25% psychiatric disability for a period of one year from date of the last hearing, February 3, 1959, and upon the request of either party, the order provided that it would be unnecessary for either of them to resort to § 440.28, Florida Statutes, to obtain such re-evaluation....

...was entered pursuant to final hearing on March 8, 1960. Furthermore, if the compensation order of March 11, 1959, had become final no “hearing” could have been held to change said order, hut claimant would have had to resort to the provisions of § 440.28, Florida Statutes, F.S.A., to modify said order....

...rida Industrial Commission that he was making a claim for “additional compensation and medical treatment.” The employer and the ■ compensation carrier controverted the claim on the ground that the claim was barred-by the limitations imposed by section 440.28, Florida Statutes 1951, F.S.A., in that a .period in excess of one year had intervened between the date of the receipt of the last payment of compensation by the employee and the date upon which the employee had filed his petition for additional compensation....

...Subsequently, the deputy commissioner entered an order which contained the following findings: “Without regard to claimant’s present or past physical condition since compensation was discontinued, and based solely 'on the limitations imposed by section 440.28; F.S.A., amended, the undersigned *' * •* finds that the claim filed February 13-, 1953, was, in essence, for modification of the previous award and was not made within the time allowed, the last ’ compensation having been paid and...

...time and the filing of the claim. * * * “Wherefore, it is the order * * * that the above .entitled claim for additional compensation be rejected. * * * ’> On appeal from this order'the full commission found “that the one year limitation in Section 440.28, Florida Statutes 1951 [F.S.A.], is not the applicable limitation period in this matter as it appears that the claimant did not ask for a; modification of [the deputy commissioner’s] award [and] did not contend that the said award wa...

...ed upon this finding the full commission reversed the order of the deputy commissioner and remandéd the cause to the deputy commissioner for a decision on the merits. The employer and the compensation carrier ’ have sought a review of this order. Section 440.28, Florida Statutes 1951, F.S.A., upon which the deputy commissioner based his ruling, provides as follows : “Modification of awards....

order of the Deputy Commissioner. We find under § 440.28, Fla.Stats., F.S.A., that any party in interest

...The carrier paid the cost of the operation and post-operative care, but paid no compensation to claimant for the period of disability following the operation. Claimant filed a claim for the period of temporary total disability following the operation. The Deputy Commissioner treated the claim as being under the provisions of Section 440.28, Florida Statutes, F.S.A., and after a hearing on the claim issued an order dated March 30, 1955, in which he found among other things that: “In April of 1954 the employer/carrier placed claimant under the treatment of Dr....

commissioner modified the original order pursuant to Section 440.28, Florida Statutes (1981), for mistake of fact

...al impairment and no need for further medical treatment. We note, however, that the deputy commissioner’s dismissal with prejudice of Dunigan’s claim for further medical treatment does not prejudice Dunigan’s rights to modification pursuant to section 440.28, Florida Statutes....

BOOTH, Judge. This cause is before us on appeal from an order denying compensation benefits. Appellant contends that the judge of compensation claims (JCC) erred in applying Section 440.28, Florida Statutes, to deny the claim for additional benefits....

...The employer and carrier controverted the claim on the ground that: Claimant reached MMI on June 4, 1984 with no permanent impairment per order of Deputy Commissioner Lawrence Lan-ger on August 2, 1984. There was no appeal, no petition to modify, no claim for further compensation benefits made within two years per FS 440.28....

...porarily and totally disabled since May 29, 1989 and remained so to the date of the hearing, June 19, 1990, the claim for reinstatement of compensation must be denied for lack of a timely filing of a petition for modification under the provisions of Section 440.28....

...Claimant, how *1182 ever, did not seek, on rehearing, to strike the JCC’s finding of MMI. We are not free to revise that finding, which was supported by competent, substantial evidence of record at the time entered. Appellant’s remedy was by timely application for modification under Section 440.28, Florida Statutes. University of Florida v. McLarthy, supra; Keller Kitchen Cabinets v. Holder, 586 So.2d 1132 (Fla. 1st DCA 1991). Claimant’s failure to bring an action within the two years allowed by Section 440.28, Florida Statutes, precludes his receiving additional compensation benefits....

...Finally, on November 19, 1984, claimant filed a claim for TTD benefits for the period of time that he was recovering from the surgery, from August 1, 1984 to October 18, 1984. The e/c defended on the basis that the claim was not timely filed pursuant to Section 440.28, Florida Statutes (1975), and was barred....

...Specifically, the carrier argued that MMI and permanency had previously been established by the order of January 21, 1981; that the last compensation benefit paid pursuant to that order was on April 25, 1982; therefore all further claims were barred by the two-year limitation provisions of section 440.28, as of April 25, 1984. On March 25, 1985, the deputy entered the order on review, finding that the claim filed on November 19, 1984 was timely under both Sections 440.19(1)(a), and 440.28, Florida Statutes (1975), and therefore claimant was entitled to TTD and other benefits during the requested period....

...to the situation where payments are made without an award, in which case further payments may be made within two years after payment of compensation or remedial treatment"). Accord Bassett's Dairy v. Thomas, 429 So.2d 1356 (Fla. 1st DCA 1983) (Sections 440.19(1)(a) and 440.28 are designed to be used in different situations, depending upon whether benefits for a particular injury have been furnished pursuant to a compensation order for a single injury, or entirely without an award.)....

...and Electric Mutual Liability v. Spann is clear-cut authority for the position that once an order fixes the date of MMI and awards PPD, a later claim, whether seeking additional temporary or permanent benefits, or both, must meet the limitation provisions of only section 440.28 — not 440.19(1)(a)....

...Accordingly, once a compensation order has been entered and payments are made pursuant thereto, it makes no difference whether the original claim contained a request for both temporary or permanent compensation. The appropriate way to proceed for modification of the original order is by section 440.28....

...Because claimant in the instant case suffered only one work-related injury for which he received compensation pursuant to order, any later claim seeking to alter the effect of such order was not an initial claim, but a request to modify the prior order because of a change in condition. The provisions of section 440.28 therefore exclusively apply. The deputy further found that the claim filed in 1984 was not barred by the provisions of section 440.28, [2] on the ground that the statute permits a petition for modification to be filed "at any time prior to two years after the date copies of an order rejecting the claim are mailed......

...rejecting the claim for increased PPD benefits, therefore the instant claim was timely filed pursuant to such statute. The deputy erroneously considered that the order of 1983 had the effect of tolling the running of the time limitations set out in section 440.28....

...27 the last payment of compensation benefits pursuant to the first order. As a result, the second order entered on July 13, 1983, denying claimant's petition for modification, could not act to toll the running of the statutory provisions provided in section 440.28. Neither could the carrier's voluntary payments of compensation and voluntary furnishing of remedial treatment to claimant serve to revive the statutory provisions of section 440.28, after a compensation order had been entered. See Spann. Finally, since the provisions of section 440.28 are solely applicable to the instant case, the carrier cannot be estopped because of its voluntary actions from asserting the statute of limitations as a defense to appellant's claim, since estoppel, an affirmative defense, is inapplicable to section 440.28, and the time limitations contained therein are strictly jurisdictional. Budget Luxury Inns, Inc. v. Boston, 407 So.2d 997, 999 (Fla. 1st DCA 1981). Because the instant claim was not filed within the time limitations provided in section 440.28, the order entered below is REVERSED....

...ment has been furnished by the employer without an award on account of such injury a claim may be filed within 2 years after the date of the last payment of compensation or after the date of the last remedial treatment furnished by the employer. [2] Section 440.28, Florida Statutes (1975), provides in part: Upon a judge's own initiative or upon the application of any party in interest, on the ground of a change in condition or because of a mistake in a determination of fact the judge of industri...

...There is substantial competent evidence of material changes in appellee’s physical condition, causally related to the original accident, and in other conditions bearing on appellee’s wage earning capacity, which justify the modification order. Section 440.28, Florida Statutes (1977)....

...otal disability and supplemental benefits. Should the employer and carrier be of the view that the claimant is no longer entitled to benefits because her condition has improved, they are free to revisit the issue pursuant to the procedure set out in section 440.28, Florida Statutes (2002)....

...prescribe such care. See § 440.13(2)(a), Fla. Stat. (2004) (providing that employer must furnish “medically necessary remedial treatment, care, and attendance for such period as the nature of the injury or the process of recovery may require”); § 440.28, Fla....

supportable petition for modification under Section 440.28, Florida Statutes, the deputy could not relitigate

PER CURIAM. Appellant seeks reversal of the JCC’s award of permanent total benefits and medical benefits, contending that such benefits are barred by the limitations provision of section 440.28, Florida Statutes (1987)....

...nefits from February 19, 1999, and authorized future treatment of her low-back condition. In so doing, the JCC erred in part. We find that Claimant’s disability claim is barred because she failed to file a petition for modification, as required by section 440.28, Florida Statutes (1987), within two years after the entry of the April 12, 1994 order....

...SMITH, Jr., Chief Judge. We have considered at some length Ack-el’s appeal from the deputy commissioner’s 1981 order denying Ackel’s petition to modify the May 1978 compensation order based on an asserted detrimental change in Ack-el’s condition. Section 440.28, Florida Statutes (1979)....

...Within a few months claimant had an operation on her back following which *224 she filed a claim asking for additional remedial treatment, additional compensation and expenses. It should be noted here that this ■claim did not request modification or review under Sec. 440.28, F.S.A....

...further compensation. No effort was made to prove mistake of fact or change of condition. Thus the issues and the evidence presented to the deputy were different than would have been the case had the claimant sought modification or review under Sec. 440.28, supra....

...g on her because the employer did not sign it. Were it not for the provisions of the stipulation itself, we would be inclined to agree with the Full Commission that the “lump sum” settlement order was not immune from modification or review under Section 440.28, supra....

...to modification ■or review. The second sentence deals with lump sum payment of all benefits, both compensation and medical, and specifically provides that such an order discharging all liability will not be subject to modification or review under Section 440.28, supra....

...ision regarding the first type of order, the Legislature made a critical distinction in the effect of the two types of orders. If the settlement provides merely for lump sum payment of compensation it remains subject to subsequent modification under Section 440.28, supra....

...The problem which confronts the claimant in the instant case derives from the specific language of the original stipulation. In agreeing to the entry of the settlement order the stipulation specifically provided “that the said compensation order shall not be subject to modification or review under Section 440.28, Florida Statutes, 1959, for compensation benefits.” This provision was not affected, but by implication was reaffirmed, by the subsequent stipulation which made it clear that the original stipulation was not intended to terminate the claimant’s right to future medical attention....

...change in condition since the entry of his original order or a mistake of fact made therein. One of these situations had to exist or the Deputy'would not have had jurisdiction to entertain the petition for modification filed under the provisions of Section 440.28, Florida Statutes, F.S.A....

...Consequently we have no way to test the Deputy’s undeclared findings by the record. We therefore quash the order of the full Commission and remand the case with directions to the full Commission that it return the cause to the Deputy with instructions that he make specific findings as required by F.S. Section 440.28, F.S.A., and our decisions on the issues, to wit: Whether there had been a change in condition since entry of his prior order or if there had been a mistake of fact made therein....

...the time of the original diagnosis, he knew that the changes that had occurred very possibly would occur. Compare General Electric Company v. Osborne, 394 So.2d 1089 (Fla. 1st DCA 1981), in which the court stated: The change of condition provision [Section 440.28, Florida Statutes] is designed *572 to afford relief to a claimant whose condition either becomes progressively worse when not anticipated by the original diagnosis or is the product of evidentiary factors not known at the time of the initial claim proceeding....

...dent and 70 per cent due to a pre-existing arteriosclerotic heart disease. No appeal was taken from this decision. In 1966 claimant filed a petition for modification seeking additional permanent disability based upon a change in condition under F.S. Section 440.28, F.S.A....

...heart attacks, one in December 1967 and the other in December 1968. Claimant then filed another petition for modification. The Judge of Industrial Claims found claimant had “suffered a *32 change of condition within the meaning of Florida Statute 440.28, F.S.A., and is permanently and totally disabled from an earning capacity standpoint since the second myocardial infarction on December 31, 1967.” (Emphasis added.) The Judge continued to apply the 30 per cent apportionment figure....

...erence to accumulation of evidence equally to the matters of mistake of fact and change of condition. ‡ ‡ J}i >fc “We propose rigidly to adhere to the rule in respect of the valuelessness of cumulative evidence in petitions filed under Sec. 440.28, supra, and the uselessness of resorting to the law in an effort to secure a re-trial but it does not follow that petitions for modification on the ground of mistake of fact and those based on change of condition fall neatly in the same catego...

...Bruce Construction Corporation, supra, at 117 and 118. In the case sub judice there was competent substantial evidence supporting the Judge of Industrial Claims’ finding that claimant had suffered a change of condition within the meaning of F.S. Section 440.28, F.S.A., primarily the occurrence of the two later heart attacks causally related to the compensable accident....

...Under the Workmen’s Compensation Law compensation for disability is payable only for the period of the employee’s disability. Award of compensation or the approval of a lump sum payment of compensation does not constitute ■a final judgment, for by Section 440.28, Florida Statutes, F.S.A., orders awarding compensation are subject to modification where there is a change in condition or a mistake in a determination of fact upon which the award is predicated....

...ealed within 20 days, such order became final. Section 440.25(4) and Section 440.27(3) F.S.A. No appeal was perfected to the Circuit Court by the employee within the 20-day *64 period. It, therefore:, became final twenty days from August 14th, 1947. Section 440.28, F.S.A.' gives to the employee an additional or alternate remedy under certain conditions, notwithstanding no appeal was taken to the: Circuit Court....

...___________________________ On appeal from an order of the Judge of Compensation Claims. Iliana Forte, Judge. Date of Accident: October 11, 1985. December 14, 2018 PER CURIAM. The JCC erroneously interpreted section 440.28 of the Florida Statutes as not authorizing an Employer/Carrier to petition for modification of previously-granted medical benefits. The JCC likewise erred in refusing to compel the Independent Medical Examination that the E/C requested....

...Claimant, her husband, and her daughter signed off on their time sheets. After Claimant stopped seeing her authorized physician, the E/C conducted surveillance, which demonstrated that Claimant was not receiving all of the attendant care for which the E/C had been paying. The E/C petitioned for modification under section 440.28, asserting that Claimant had failed to participate in provided care and therefore could not substantiate a need for that care to be continued, and that Claimant had engaged in fraudulent reporting of attendant care hours received....

...establish Claimant’s medical condition. Although the E/C had requested an IME to obtain precisely that evidence, the JCC concluded that she lacked jurisdiction to compel treatment or allow the E/C to obtain medical evidence from Claimant. Scope of Section 440.28. We review the JCC’s interpretation of the statute de novo. Lombardi v. S. Wine & Spirits, 890 So. 2d 1128, 1129 (Fla. 1st DCA 2004). Claimant argues that section 440.28 provides no 1 The fraud defense under section 440.09(4) is not available for accidents that occurred before the statute’s 1994 effective date....

...1st DCA 1999). 2 point of entry for an E/C to compel an IME on the basis of allegedly changed circumstances; and that IMEs are available solely as provided in section 440.13(5), which Claimant argues does not apply here. We reject Claimant’s argument that we should interpret section 440.28 as providing a point of entry only for disputes involving monetary benefits. We adhere to our previous interpretation of section 440.28 as encompassing both monetary and medical benefits awarded in compensation orders. The statute in question, entitled “Modification of orders,” provides in pertinent part as follows (emphasis added): Upon a judge of c...

...review a compensation case in accordance with the procedure prescribed in respect of claims in s. 440.25 and, in accordance with such section, issue a new compensation order which may terminate, continue, reinstate, increase, or decrease such compensation or award compensation. § 440.28, Fla....

...change in the claimant’s condition. Id. at 1267. We reversed and remanded for the JCC to consider the testimony of claimant’s treating physician. Id. at 1268. We accepted without question the E/C’s petitioning to reduce or eliminate attendant care benefits under section 440.28....

...dical and disability benefits); § 440.25(4)(e), Fla. Stat. (including all orders 3 “making an award or rejecting the claim” as “compensation orders”). In an earlier attendant-care case, we noted that section 440.28 allows either of the parties, and the JCC, to seek modification of an order due to a change in condition. Adams Bldg. Materials, Inc. v. Brooks, 892 So. 2d 527, 530 (Fla. 1st DCA 2004); see also Hardrives of Delray v. Stimely, 670 So. 2d 108, 110 (Fla. 1st DCA 1996) (noting that section 440.28 allows petitions for modifications for a change in claimant’s condition or mistake in fact determined in earlier order). We approve the E/C’s resort to section 440.28 to seek modification of a previous medical benefit awarded, based upon an alleged change in the Claimant’s medical condition. We also conclude that this interpretation of the statute best comports with the intended function of the workers’ compensation system of dispute resolution....

...intent to decide cases on their merits quickly and efficiently without skewing in favor of either side. § 440.015, Fla. Stat. Authority for IME We further reject Claimant’s argument that even if the E/C can petition for a modification under section 440.28, there can be no IME to prove the factual basis for the petition....

...In this way, the judge of compensation claims ordered Bayfront Medical Center and Commercial Risk Management to provide medical treatment for Ms. MeTier’s hypertension and renal insufficiency. The washout order is not subject to modification under section 440.28, Florida Statutes, insofar as it discharges the employer and carrier from liability for future payments of compensation, death benefits and rehabilitation expenses, § 440.20(12), Fla....

...Goldstein’s August 24, 1993, report (or anything else) persuaded the employer or its carrier that Ms. McTier was not entitled to “any further treatment for the employee’s hypertension or renal insufficiency,” it was incumbent on them to file a petition, under section 440.28, Florida Statutes, to modify the medical benefits portion of the agreed order....

...The point here for review resolves itself into whether or not there was competent substantial testimony offered to the Deputy Commissioner which would warrant his granting disability benefits on the basis of a change in the claimant’s condition under Section 440.28, Florida Statutes, F.S.A....

...Rogers, 443 So.2d 149 (Fla. 1st DCA 1983). After an order has become final, it may be modified upon a deputy’s own initiative, or upon the application of any party in interest, but only on the grounds *294 of a change in condition or a mistake in a determination of fact. Section 440.28, Florida Statutes....

This does not apply to cases arising under Section 440.28, Florida Statutes * (emphasis added) Rule 11

paid by the carrier. I would also observe that Section 440.28, Florida Statutes, relating to modification

...JCC E. Douglas Spangler. PER CURIAM. In this workers’ compensation matter, Petitioner/Claimant seeks a writ of mandamus requesting this Court order the Judge of Compensation Claims (JCC) to schedule a hearing on an action pending under section 440.28, Florida Statutes (2009)....

...The JCC denied the motion, and the matter proceeded forward on the PFB. On the date of the scheduled final hearing, August 29, 2013, the JCC entered an order cancelling the hearing, dismissing Claimant’s PFB, declaring the proceeding before him to be a modification proceeding under section 440.28, and instructing the parties to coordinate a hearing to address modification of the order awarding Claimant PTD benefits. On September 3, 2013, the presiding federal court judge granted Claimant’s...

...Section 440.25(4)(c) requires the JCC to give the parties at least 14 days’ notice of the final hearing. Here, the JCC, in the August 2013 order, declared the proceeding was “a proceeding to modify the final compensation Order rendered January 26, 2012.” Section 440.28, Florida Statutes (2009), provides that 3 proceedings to modify orders are to be conducted “in accordance with the procedure prescribed in respect to claims in s....

...The Deputy Commissioner dismissed this particular claim for benefits with prejudice, foreclosing any future proceedings on the same claim. This he may do without conflicting with G & S Packing Company v. Driggers, 382 So.2d 446 (Fla. 1st DCA 1980) or Section 440.28, Florida Statutes (1981)....

...his previous compensation order, notwithstanding the fact that claimant filed her petition for modification within two years of the date of her last compensation payment. We agree and, therefore, reverse and remand for a determination on the merits. Section 440.28, Florida Statutes (1997), provides, in pertinent part, as follows: Upon a judge of compensation claims’ own initiative, or upon the application of any party in interest, on the ground of a change in condition or because of a mistake...

...440.25 and, in accordance with such section, issue a new compensation order which may terminate, continue, reinstate, increase, or decrease such compensation or award compensation. As the JCC noted, the limitations period for modification of orders as provided for in section 440.28 is jurisdictional and, thus, may not be waived. See Escambia County Transit v. Stallworth, 652 So.2d 905, 907 (Fla. 1st DCA 1995). We review the JCC’s construction of section 440.28 de novo....

...mant filed her petition for modification within two years of the date of her last compensation payment, claimant made no effort to have an expedited hearing or to have the matter heard prior to the two-year time frame running. This interpretation of section 440.28 would lead to an arbitrary and absurd result and would place an unnecessary and impracticable burden on a party seeking modification to ensure that a JCC review or enter an order on the petition within the two-year time period....

...ior to two years after the date copies of an order rejecting a claim are mailed to the parties at their last known address. See, e.g., Jones v. Ludman Corp., 190 So.2d 760, 761-62 (Fla.1966) (noting that it could not ignore the explicit provision in section 440.28 by which a determination becomes final unless “modified upon petition filed within the specified time after the last payment of compensation”); Horton v. M & M Luncheonteria, Inc., 123 So.2d 332, 332 (Fla.1960) (“It is true that § 440.28 ... authorizes modification of compensation orders under § 440.28 ... provided application therefore is made within two years of the date of such order and other provisions of the statute are complied with.”); Walter Denson & Son v. Nelson, 88 So.2d 120, 121 (Fla.1956) (holding that, although section 440.28 is not strictly a statute of limitations, the provisions rela *77 tive to the period within which applications for modification may be made “are certainly in the nature of statutes of limitation and are sufficiently analogous that rules applicable to the latter may appropriately be used”); Griffin v. Orlando Reg’l Med. Ctr., 578 So.2d 448, 449 (Fla. 1st DCA 1991) (holding that section 440.28 did not preclude the claimant from seeking modification because the claimant’s request was clearly made within two years following the receipt of payment of compensation under the original compensation order); Pitts v. Nimnicht Chevrolet, 569 So.2d 921, 925 (Fla. 1st DCA 1990) (reversing the JCC’s order and remanding with directions to treat the claimant’s letter as sufficient to toll section 440.28’s limitations period and to permit the filing of an amended petition for modification); Tarver v. E. Airlines, 502 So.2d 48, 49-50 (Fla. 1st DCA 1987) (holding that the claimant’s petition for modification, which “was filed June 27, 1979, clearly within the two-year limitation period,” tolled the two-year statute of limitations under section 440.28); Univ....

...of Palm Beach County, 456 So.2d 524, 526 (Fla. 1st DCA 1984) (disagreeing with the deputy’s finding that the claimant failed to timely file a petition for modification and concluding that the claimant requested modification well within the two-year period mandated by section 440.28); Walker v....

...or modification was filed within two years of the date copies of the compensation order were mailed to the respective parties); see also Niedbalski v. R.C. Collins & Son, Inc., IRC Order 2-2507 (Mar. 6, 1974) (ruling that it was sufficient under section 440.28 if a petition for modification is filed within two years after the date of the last payment of compensation or at any time prior to two years after the date copies of an order rejecting a claim are mailed to the parties at the last known address of each)....

...Benefits paid pursuant to the 1984 order ended on October 8, 1984. On June 5, 1985, the claimant filed a claim, framed as a modification of the 1980 order, requesting TTD benefits based upon a change in his condition. Palm Beach opposed the claim contending that the statute of limitations, section 440.28, Florida Statutes (1975), foreclosed modification of the 1980 order....

...From among the several issues presented by Palm Beach on appeal, we distill only one warranting analysis. We affirm the deputy commissioner. Upon consideration of the present record, the threshold question confronting us is whether the 1984 order falls within the intendment of “any compensation order” referred to in section 440.28, Florida Statutes (1975). If the 1984 order granting TTD benefits until October 8, 1984, is encompassed within that statutory phrase, it, and not the 1980 order, is the starting point in determining the effective moment of the two year limitation prescribed in section 440.28....

...preme court’s most recently expressed views associated with the administration of Chapter 440, “[w]hen the language of a statute is clear, courts may not look beyond the plain meaning of that language” and “given the unambiguous language of [section 440.28], it would be inappropriate for us to read into [it] more obstacles for claimants than” the provision demands. Daniel v. Holmes Lumber Co., 490 So.2d 1252 (Fla.1986). Moreover, even if there were ambiguity or other uncertainty arising from the interaction of sections 440.15(2)(b) and 440.28, “Florida’s workers’ compensation laws are remedial in nature and the courts should resolve any doubts as to statutory construction in favor of providing benefits to injured workers.” At 1256. Within the confines of those principles, we conclude that the reference in section 440.-15(2)(b) to the word “compensation” renders the deputy commissioner’s 1984 order a compensation order. Thus, the 1985 order is well within section 440.28’s two year *182 limitation measured from the last compensation payment received by the claimant....

...been unsuccessfully litigated over two years earlier. We affirmed the deputy commissioner’s denial of the claim notwithstanding the claimant was still receiving PPD benefits. Such denial, however, was based upon the application of that portion of section 440.28 which bars modification of an order “2 years after the date copies of an order rejecting a claim are mailed to the parties,” and not that aspect of the statute imposing a barrier to the modification of an order upon the expiration of two years following the last compensation payment....

...cord before us, preclude the deputy commissioner’s order. But cf. Southern Bell Tel. & Tel. Co. v. Blackstock, 419 So.2d 360 (Fla. 1st DCA 1982). Accordingly, the deputy commissioner’s order is affirmed. NIMMONS and BARFIELD, JJ„ concur. . Section 440.28, Florida Statutes (1975), provides, in pertinent part, as follows: Upon a judge’s own initiative or upon the application of any party in interest, on the ground of a change in condition or because of a mistake in a determination of f...

a proper motion and hearing as required by section 440.28, Florida Statutes. The error nevertheless is

...and whose injuries have stabilized will at some future time be unable to work. Walter Boller Farms v. Stevens, IRC Order 2-3883 (Aug. 10, 1979). If the deputy’s prediction proves correct, the claimant may seek relief pursuant to the provisions of § 440.28, Fla.Stat....

...utes. It codifies existing procedure to permit the Deputy Commissioner to adjudicate issues as they become ripe. RULE 4.058. PETITION FOR MODIFICATION; CLAIM FOR REIMBURSEMENT FROM SPECIAL DISABILITY TRUST FUND Petitions for modification pursuant to Section 440.28, Florida Statutes, and petitions for reimbursement from the Special Disability Trust Fund pursuant to Section 440.49(2), Florida Statutes, shall be made substantially in the form of a claim....

...t be disturbed on appeal. City of Tampa v. Bartley, 413 So.2d 1280 (Fla.App. 1st DCA 1982). *399 In Fleshe v. Interstate Warehouse, 411 So.2d 919 (Fla. 1st DCA 1982), we held that a modification based on change in earning capacity is contemplated by section 440.28, Florida Statutes, and that such a change may be predicated on work search evidence accumulated after initial denial of wage earning capacity loss, where the initial denial was based on an inadequate work search or no work search....

...imant’s anatomical rating. The focus in Fleshe is not on the type of benefits being sought, but whether evidence of a change in earning capacity after the entry of the original compensation order is sufficient to support a modification pursuant to section 440.28....

...have paid the claimant compensation until January 16, 1981. Claimant’s petition for modification was received by the Bureau of Workers’ Compensation on January 3, 1983. Employer and carrier raised the two-year statute of limitations set forth in Section 440.28, Florida Statutes as a bar to claimant’s petition, arguing that the date of the last check controls....

condition or a material mistake of fact” under section 440.28, Florida Statutes. While a new adjudication

...Although noting that the instant wage loss claim was for a different time period, it is clear that the dc treated this application for wage loss benefits as a petition to modify his earlier order denying benefits. He imposed the stricter standard of proof applied to modifications set out in section 440.28, Florida Statutes (1987), and concluded that neither basis for modification, i.e....

...age loss. In Gator Shoe Corp. v. Mungia, supra, the dc found that in a subsequent wage loss claim, relitigation of work search issues was barred by res judicata unless the claimant could show a change of condition or a material mistake in fact under section 440.28....

...the dc to apply estoppel and modification to deny wage loss benefits. E/c’s reliance on Wellcraft Marine Corp. is misplaced. There we held that at a subsequent wage loss hearing the burden would be on the ec to show grounds for modification under section 440.28 when the claimant had already proven his permanent impairment in an earlier wage loss claim....

...In reaching this conclusion the judge expressly “overruled” a prior order determining that claimant did sustain a compensable “injury by accident.” We find that it was error to so modify the prior order without applying the necessary standards for modification under section 440.28, Florida Statutes, and we therefore reverse the order appealed....

...claimant did not experience an accident in the course and scope of employment, since this issue had been determined by the prior order the judge should not have purported to “overrule” that determination without proceeding by modification under section 440.28, Florida Statutes....

...a statutory predicate for modification. As the challenged order likewise fails to indicate any consideration of the statutory grounds for modification upon “a change in condition or because of a mistake in a determination of fact” as required by section 440.28, we must reverse the order appealed. In remanding for the judge to consider the applicability of section 440.28, we express no opinion as to whether the circumstances here presented are such as to establish a basis for modification under the statute....

...The due diligence requirement imposed by this court is inconsistent with Rule 4.130 and the law generally applicable to relief from a stipulation as set forth by Judge Webster in his dissent in Fawaz. Cf. Oakdell, Inc. v. Gallardo, 505 So.2d 672 (Fla. 1st DCA 1987) (“Section 440.28 by its terms does not limit one seeking to modify a compensation order to a shorter period than two years from the entry of the order, or within two years after the last payment of compensation, because of such person’s lack of due diligence.” The deputy commissioner imposed a due diligence standard on the employer/carrier which is not required by section 440.28.); Metropolitan Dade County v. Barry, 614 So.2d 666 (Fla. 1st DCA 1993) (Relying on Gallardo , modification pursuant to section 440.28, Florida Statutes, is not precluded even though the portion of the order to be modified was agreed upon by stipulation, and even though the employer may have failed to exercise due diligence to discover the fraud through investigative and discovery procedures.)....

This does not apply to cases arising under Section 440.28, Florida Statutes, or to cases appealed and

...See St. Joseph Hosp. v. Causey, 667 So.2d 464 (Fla. 1st DCA 1996). Because the earlier denial of benefits for the prior time period did not go to the entire merits of future disability claims, the claimant is not required to seek modification under section 440.28, Florida Statutes....

Compensation Act, modification pursuant to the terms of § 440.28, Florida Statutes, is the prescribed relief from

...ual to the present value of all future payments for both compensation and remedial treatment, care and attendance; and a compensation order so entered upon joint petition of all interested parties shall not be subject to modification or review under § 440.28....

...ual to the present value of all future payments for both compensation and remedial treatment, care and attendance; and a compensation order so entered upon joint petition of all interested parties shall not be subject to modification or review under § 440.28....

...This appeal followed. ANALYSIS Claimant argues that the JCC erred in granting the E/C’s petition to modify as the evidence produced at the modification hearing was no more than additional evidence on the issues that had been previously determined. Section 440.28, Florida Statutes (1993), provides, in pertinent part, as follows: Upon a judge of compensation claims’ own initiative, or upon the application of any party in interest, on the ground of a change in condition or because of a mistake in a determination of fact, the judge of compensation claims may ... issue a new compensation order which may terminate, continue, reinstate, increase, or decrease such compensation or award compensation. Section 440.28 was not intended to afford a claimant a vehicle to relitigate an identical issue that has been previously determined solely upon an increase in the quantum and probative force of evidence in support of a conclusion that is contrary to the conclusion reached in the prior determination....

...order, it did not disclose claimant’s condition prior to these occurrences. Therefore, such evidence was not relevant to the issue of whether the JCC made a mistake in a determination of fact. Furthermore, the E/C cannot utilize the provisions in section 440.28 to relitigate the issue of claimant’s permanent and total disability based solely on an increase in the quantum and probative force of evidence in support of their argument, which is contrary to the JCC’s initial determination....

...ant, and determining whether the amount of the settlement is proper under the statute. Where the parties stipulate that the proposed final settlement of liability for the employer for compensation shall not be subject to modification or review under section 440.28, the judge is directed to make or cause to be made such investigation as he considers necessary to determine whether such final disposition will definitely aid the rehabilitation of the injured worker or otherwise is clearly for the best interest of the person entitled to compensation....

...or benefits paid after August 16, 1986. Although the pre-trial stipulation indicated that the claimant was seeking attorney’s fees, the judge did not address the issue in his order, nor did he reserve jurisdiction to consider fees at a later time. Section 440.28, Florida Statutes (1975) provides that “upon the application of any party in interest, on the ground of a change in condition ......

...y. § 440.39(3)(a), Fla. Stat. (1991). But we affirm without prejudice to any proceeding in circuit court which might afford the judge of compensation claims an appropriate predicate for ordering an offset in proceedings subsequently initiated under section 440.28, Florida Statutes....

...ual to the present value of all future payments for both compensation and remedial treatment, care and attendance; and a compensation order so entered upon joint petition of all interested parties shall not be subject to modification or review under § 440.28.” The current analogue to section 440.20(10) is section 440.20(12)(b)(l), Florida Statutes, (1985).