Florida Statutes
Fla. Stat. § 440.28 (2025)
Modification of orders.
✓ 2025 Florida Statutes — current through the 2025 Regular Session
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440.28 Modification of orders.—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, at any time prior to 2 years after the date of the last payment of compensation pursuant to the 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 at the last known address of each, 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. Such new order shall not affect any compensation previously paid, except that an award increasing the compensation rate may be made effective from the date of the injury, and, if any part of the compensation due or to become due is unpaid, an award decreasing the compensation rate may be made effective from the date of the injury, and any payment made prior thereto in excess of such decreased rate shall be deducted from any unpaid compensation, in such manner and by such method as may be determined by the judge of compensation claims.
History.—s. 28, ch. 17481, 1935; CGL 1936 Supp. 5966(28); s. 9, ch. 20672, 1941; s. 10, ch. 28241, 1953; s. 119, ch. 71-355; s. 13, ch. 75-209; s. 23, ch. 78-300; ss. 21, 124, ch. 79-40; s. 21, ch. 79-312; s. 43, ch. 89-289; s. 56, ch. 90-201; s. 52, ch. 91-1; s. 5, ch. 91-46; s. 31, ch. 93-415.
Notes of Decisions
Cited in 209
cases, 1945–2019 · leading case: Keller Kitchen Cabinets v. Holder, 586 So. 2d 1132 (Fla. 1st DCA 1991).
Keller Kitchen Cabinets v. Holder, 586 So. 2d 1132 (Fla. 1st DCA 1991). “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.”
Flesche v. Interstate Warehouse, 411 So. 2d 919 (Fla. 1st DCA 1982). “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. We must respectfully disagree with these rulings by the…”
Massie v. Univ. of Florida, 570 So. 2d 963 (Fla. 1st DCA 1990). “Emmett Massie appeals a workers' compensation order denying his application for modification pursuant to section 440.28, Florida Statutes (1983). He contends that the deputy commissioner erred in ruling that he had not demonstrated either a change in condition or a mistake in a…”
Caron v. Systematic Air Servs., 576 So. 2d 372 (Fla. 1st DCA 1991). “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,…”
Univ. of Florida v. McLarthy, 483 So. 2d 723 (Fla. 1st DCA 1986). “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.”
In re Amendments to the Florida Rules of Workers' Comp. Procedure, 674 So. 2d 631 (Fla. 1996). “Application for modification of an order under section 440.28, Florida Statutes, shall be substantially in the form of a petition under section 440.”
Holder v. Keller Kitchen Cabinets, 610 So. 2d 1264 (Fla. 1992). “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,…”
Gen. Elec. Co. v. Spann, 479 So. 2d 289 (Fla. 1st DCA 1985). “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). We affirm in part and reverse in part.”
E. Airlines & GAB v. Griffin, 654 So. 2d 1194 (Fla. 1st DCA 1995). “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…”
Brown v. Giffen Indus., Inc., 281 So. 2d 897 (Fla. 1973). “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. The pertinent portions of the…”
Walter Denson & Son v. Nelson, 88 So. 2d 120 (Fla. 1956). “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…”
Amendments to Florida Rules of Workers' Comp. Procedure, 603 So. 2d 425 (Fla. 1992). “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.”
— 440.28(8) — 1 case
City of North Miami v. Marcy, 630 So. 2d 601 (Fla. 1st DCA 1993).
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