section 440.28 modification (Florida) · Go Syfert
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section 440.28 modification in Florida

24 Florida opinions name it 2 courts 1980–2019 0 in the last five years

The cases below were cited by Florida courts in a sentence that names this issue. Sides come from how each citing opinion treated the case (Syfertize flag on that citation), so a case can appear on both: that is where the law is contested. A red or yellow chip is the case's own overall treatment.

Followed or applied (15)

CaseFollowedCited
Keller Kitchen Cabinets v. Holdergreen
fladistctapp · 1991 · cited in 2 Florida opinions naming this issue, 1992–1992
2 sentences

1992Modification is not required because a premature compensation claim, not ripe for adjudication, does not meet the required elements of identity in the thing sued for or identity of the cause of action necessary for application of the doctrine of res judicata. 586 So.2d at 1142 (Zehmer, J., dissenting); Albrecht v. State, 444 So.2d 8, 11-12 (Fla. 1984), superseded by statute on other grounds, Bowen v. Dept. of Envtl.

1992University of Florida v. McLarthy, supra; Keller Kitchen Cabinets v. Holder, 586 So.2d 1132 (Fla. 1st DCA 1991).

12
Mylock v. Champion Intern.green
fladistctapp · 2005 · cited in 1 Florida opinions naming this issue, 2019–2019
1 sentence

2019See 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.

11
St. Joseph Hospital v. Causeygreen
fladistctapp · 1996 · cited in 1 Florida opinions naming this issue, 2008–2008
1 sentence

2008See Causey, 667 So.2d at 468 .

11
BUENA VISTA CONST. CO. v. Cappsgreen
fladistctapp · 1995 · cited in 1 Florida opinions naming this issue, 2006–2006
1 sentence

2006Compare Capps, 656 So.2d at 1380 ("The JCC erroneously included future monetary benefits in computing the attorney's fee award.

11
Griffin v. ORLANDO REGIONAL MED. CENTERgreen
fladistctapp · 1991 · cited in 1 Florida opinions naming this issue, 2004–2004
1 sentence

2004Ctr., 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.

11
Walter Denson & Son v. Nelsongreen
fla · 1956 · cited in 1 Florida opinions naming this issue, 2004–2004
1 sentence

2004See, 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 Dens

11
Horton v. M & M Luncheonteria, Inc.green
fla · 1960 · cited in 1 Florida opinions naming this issue, 2004–2004
1 sentence

2004See, 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 Dens

11
Pitts v. Nimnicht Chevroletgreen
fladistctapp · 1990 · cited in 1 Florida opinions naming this issue, 2004–2004
1 sentence

2004Ctr., 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.

11
Jones v. Ludman Corp.green
fla · 1966 · cited in 1 Florida opinions naming this issue, 2004–2004
1 sentence

2004See, 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 Dens

11
Vickers v. Unity of Lake Worthgreen
fladistctapp · 1996 · cited in 1 Florida opinions naming this issue, 1996–1996
1 sentence

1996See Hardrives of Delray, Inc. v. Stimely, supra; see also Vickers v. Unity of Lake Worth, no. 94-3021, — So.2d -[ 1996 WL 108424 ] (Fla. 1st DCA March 13, 1996).

11
Hardrives of Delray Inc. v. Stimelygreen
fladistctapp · 1996 · cited in 1 Florida opinions naming this issue, 1996–1996
1 sentence

1996See Hardrives of Delray, Inc. v. Stimely, supra; see also Vickers v. Unity of Lake Worth, no. 94-3021, — So.2d -[ 1996 WL 108424 ] (Fla. 1st DCA March 13, 1996).

11
City of Miami v. Knightgreen
fladistctapp · 1987 · cited in 1 Florida opinions naming this issue, 1995–1995
1 sentence

1995City of Miami v. *985 Knight, 510 So.2d 1069, 1072 (Fla. 1st DCA 1987), review denied, 518 So.2d 1276 (Fla. 1987), rev'd on other grounds, Barragan v. City of Miami, 545 So.2d 252 (Fla. 1989); Pierce v. Aetna Ins.

11
Albrecht v. Statered
fla · 1984 · cited in 1 Florida opinions naming this issue, 1992–1992
1 sentence

1992Modification is not required because a premature compensation claim, not ripe for adjudication, does not meet the required elements of identity in the thing sued for or identity of the cause of action necessary for application of the doctrine of res judicata. 586 So.2d at 1142 (Zehmer, J., dissenting); Albrecht v. State, 444 So.2d 8, 11-12 (Fla. 1984), superseded by statute on other grounds, Bowen v. Dept. of Envtl.

11
University of Florida v. McLarthygreen
fladistctapp · 1986 · cited in 1 Florida opinions naming this issue, 1992–1992
2 sentences

1992University of Florida v. McLarthy, supra; Keller Kitchen Cabinets v. Holder, 586 So.2d 1132 (Fla. 1st DCA 1991).

1992In University of Florida v. McLarthy, 483 So.2d 723, 725 (Fla. 1st DCA 1985), this court held that: The general rule is that TTD benefits are not available to an injured claimant, once a date has been established finding that a claimant has reached MMI, on the ground that the date of MMI marks the end of temporary disability and the beginning of permanent disability, except under unusual circumstances.

11
University Inns v. Davisgreen
fladistctapp · 1982 · cited in 1 Florida opinions naming this issue, 1990–1990
1 sentence

1990University Inns v. Davis, 413 So.2d 128, 129 (Fla. 1st DCA 1982).

11

Distinguished, questioned or overruled (0)

CaseNegativeCited
No negative-treatment citations attached to this issue in Florida. Read the followed side critically anyway.

Also cited on this issue (19)

CaseCitedYears
Caron v. Systematic Air Services green
fladistctapp · 1991
2 sentences

1996That brings this case well within the estoppel doctrine described in Caron v. Systematic Air Services, 576 So.2d 372 (Fla. 1st DCA 1991), even recognizing separate causes of action for serial periods of temporary disability under the act.

1991Caron v. Systematic Air Services, 576 So.2d 372 (Fla. 1st DCA 1991).

21991–1996
Maffitt v. Henderson's Portion-Pak, Inc. green
fla · 1961
2 sentences

1981Finally, 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. Stat. See Maffitt, 132 So.2d at 412 .

1981Maffit v. Henderson’s Portion-Pak, Inc., 132 So.2d 410 (Fla.1961); Coe, supra. Additionally, the deputy commissioner awarded 12% interest on due but unpaid compensation payments.

21981–1981
Buena Vida Townhouse Ass'n v. Parciak green
fladistctapp · 1992
1 sentence

1996That 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. v. Parciak, 603 So.2d 26 (Fla. 1st DCA 1992).

11996–1996
Barragan v. City of Miami green
fla · 1989
1 sentence

1995City of Miami v. *985 Knight, 510 So.2d 1069, 1072 (Fla. 1st DCA 1987), review denied, 518 So.2d 1276 (Fla. 1987), rev'd on other grounds, Barragan v. City of Miami, 545 So.2d 252 (Fla. 1989); Pierce v. Aetna Ins.

11995–1995
Starkman v. Bechtel Power Corp. green
fladistctapp · 1991
1 sentence

1995The claimant argues that the requisite change must be shown by the “greater weight” of the evidence in accordance with Starkman v. Bechtel Power Corp., 588 So.2d 304 (Fla. 1st DCA 1991).

11995–1995
Metropolitan Dade County v. Barry neutral
fladistctapp · 1993
1 sentence

1995Cf. 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,

11995–1995
Oakdell, Inc. v. Gallardo green
fladistctapp · 1987
1 sentence

1995Cf. 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,

11995–1995
Massie v. University of Florida green
fladistctapp · 1990
1 sentence

1992The 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. at 977 .

11992–1992
Wellcraft Marine Corp. v. Turner green
fladistctapp · 1983
1 sentence

1989We found that “there would be no justification for requiring the parties to relitigate the element of permanent impairment after the same has been determined in a wage loss proceeding.” 435 So.2d at 865 .

11989–1989
Troy Desk Manufacturing Co., Inc. v. Troy green
fladistctapp · 1984
1 sentence

1987Troy Desk Manufacturing Co., Inc. v. Troy, 448 So.2d 46 (Fla. 3d DCA 1984).

11987–1987
Dean v. McLeod green
fla · 1972
1 sentence

1984We therefore find this case distinguishable from Dean v. McLeod, 270 So.2d 726 (Fla. 1972), cited by the employer/carrier, Dean holding that a petition for modification which is denied cannot act to toll the limitations period for subsequent petitions for modification.

11984–1984
Bowman v. Food Fair Stores neutral
fladistctapp · 1981
1 sentence

1983Further, appellants contend that because the TTD benefits paid from June, 1981, to October 10, 1981, were paid in error this case is distinguishable from Bowman v. Food Fair Stores, 400 So.2d 793 (Fla. 1st DCA 1981), on which the deputy commissioner relied in determining Section 440.19(1)(a) applies in this case.

11983–1983
Flesche v. Interstate Warehouse green
fladistctapp · 1982
1 sentence

1982The order is REVERSED and REMANDED for further consideration in accord with Flesche v. Interstate Warehouse, 411 So.2d 919 (Fla. 1st DCA 1982)..

11982–1982
Sauder v. Coast Cities Coaches, Inc. green
fla · 1963
11982–1982
Dixon v. Bruce Construction Corp. green
fla · 1963
11982–1982
McKenney v. School Bd. of Palm Beach County green
fladistctapp · 1981
1 sentence

1982E.g., McKenney v. School Board of Palm Beach County, 408 So.2d 655 (Fla. 1st DCA 1981).

11982–1982
Soloff v. U-Totem, Inc. green
fla · 1971
1 sentence

1982This statement, read in isolation, can be interpreted erroneously, as later indicated by the court in Soloff v. U-Totem, Inc. of Broward, 257 So.2d 31 (Fla. 1971), in which the court reaffirmed Dixon v. Bruce Construction Corporation, 160 So.2d 116 (Fla. 1963), for the proposition that the so-called "cumulative evidence" rule, while applicable to petitions for modification on mistake of fact, cannot be applied equally and indiscriminately where the petition is based upon a change in condition.

11982–1982
Coe v. Kentucky Fried Chicken green
fladistctapp · 1981
11981–1981
STATE EX REL. IOWA NAT. MUT. INS. CO. v. Florida Industrial Commission green
fla · 1963
11980–1980

Statutes the citing opinions construe

FL § 440.28 (24) FL § 440.19 (4) FL § 440.15 (3)

Counted by distinct opinions that both name this issue and are annotated to the section; sections every opinion cites regardless of issue are not filtered here, so read the counts against the total above.

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