Foster v. EG & G Florida, Inc.
Foster v. EG & G Florida, Inc.
Opinion of the Court
Claimant, Lorie Foster, appeals the Judge of Compensation Claims’ “Order on Petition for Modification Jurisdiction” and argues that the Judge of Compensation
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 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 procedures 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.
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. See Dixon v. City of Jacksonville, 774 So.2d 763, 765 (Fla. 1st DCA 2000).
In dismissing claimant’s petition for modification and amended petition for modification, the JCC set forth, “A strict reading of the statutory language does not allow a Judge of Compensation Claims to enter an Order 2 years or later from the date of last compensation paid pursuant to the order or the date the compensation order was mailed to the parties, whichever is later.” The JCC noted that, although claimant 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. Therefore, we hold that a JCC has jurisdiction to rule on a petition for modification if the petition is filed within two 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 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
Case-law data current through December 31, 2025. Source: CourtListener bulk data.