         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                  _____________________________

                          No. 1D16-5745
                  _____________________________

UNITED STATES FIRE
INSURANCE COMPANY
and OXFORD SHOPS OF
SOUTH FLORIDA,

    Appellants,

    v.

VIRGINIA HACKETT,

    Appellee.
                  ___________________________

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. We reverse.

    Deceit as to Claimed Attendant Care.

     Claimant suffered a compensable low back injury in 1985,
but stopped seeing her authorized physician in 2012. The E/C has
nevertheless been paying for 24 hours of attendant care every
day, which for several years has been provided exclusively by
Claimant’s husband and daughter. Claimant’s husband claimed
to provide attendant care from 8:00 p.m. to 8:00 a.m. daily, and
Claimant’s daughter claimed to provide attendant care from 8:00
a.m. to 8:00 p.m. daily (in exchange for the E/C’s paying each of
them $31,143.84 a year). 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. The E/C
sought an IME to establish Claimant’s actual need for attendant
care related to the compensable injury.

     After an evidentiary hearing, the JCC found that the
“evidence is clear that [the daughter] is not providing the twelve
hours a day of home attendant care she is being compensated for
by the E/C.” The JCC concluded the claimed attendant care was
the product of “deceit” in which the Claimant and her husband
were “complicit.” 1 The JCC nevertheless denied the E/C’s petition
because, while the evidence established deceit, it did not
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. Rustic Lodge v. Escobar, 729 So. 2d 1014 (Fla. 1st DCA
1999).

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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 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 . . . 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. Stat. (2016).

     Under the plain language of the statute, “any party in
interest” may initiate review of a case for modification of an
order. We have previously allowed this statute to extend to the
provision of medical benefits. In Camus v. Manatee County
School Board, 923 So. 2d 1266 (Fla. 1st DCA 2006), the claimant
petitioned for additional attendant care hours as well as
additional monetary compensation, and the E/C petitioned to
reduce or eliminate the attendant care obligation based on a
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. See also Gustafson’s Dairy v. Phillips, 656
So. 2d 1386, 1387 (Fla. 1st DCA 1995) (holding that term
“compensation” as used in § 440.09(3) includes both medical and
disability benefits); § 440.25(4)(e), Fla. Stat. (including all orders
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“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. To bar E/Cs from
petitioning for modifications of medical benefits upon evidence of
a change in claimants’ condition runs afoul of the Legislative
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. The statute
defines an IME as an objective evaluation of the claimant’s
medical condition “to assist in the resolution of a dispute arising
under this chapter.” § 440.13(1)(i), Fla. Stat. The statutory
provisions governing IMEs authorize the carrier or the employee
to select an IME “[i]n any dispute concerning overutilization,
medical benefits, compensability, or disability under this
chapter.” § 440.13(5)(a). The E/C’s petition for modification here
framed a dispute concerning medical benefits, within the scope of
the statute. A JCC has broad discretion to order an IME. Bedwell
v. Stone Container Corp., 174 So. 3d 1127 (Fla. 1st DCA 2015)
(citing JCC’s broad investigatory authority under pre-1990 law in
§ 440.29(1), Fla. Stat., which continues as a right under post-
1990 law). It would be anomalous to recognize an E/C’s right to
petition for modification of medical benefits, and then refuse to
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recognize the right to discovery in support of that petition. We
decline to prohibit an IME in an E/C-initiated modification
proceeding.

     In this case, after reviewing the evidence the E/C presented,
the JCC concluded that Claimant was complicit in deceit to
obtain payment for attendant care benefits that were not actually
being provided. In addition, Claimant did not dispute that she
had stopped seeing her authorized physician several years
earlier, or her husband’s testimony that she had elected several
years earlier to treat outside the workers compensation system.
This evidence was sufficient to support the E/C’s request for an
IME because a dispute existed regarding a change of condition—
namely, the Claimant’s refusal of medical care by authorized
doctors, and the question of whether she was receiving or
required all attendant care benefits the E/C was funding.
Because the E/C filed a Petition for Modification initiating
litigation as governed by section 440.25, the JCC had jurisdiction
to address the Motion to Compel IME.

    Conclusion

     We REVERSE and REMAND for proceedings on the E/C’s
petition, including the performance of an IME as the E/C
requested.

ROBERTS, BILBREY, and KELSEY, JJ., concur.

                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________

William H. Rogner and Andrew R. Borah of Hurley, Rogner,
Miller, Cox and Waranch, P.A., Winter Park, for Appellants.

David C. Wiitala of Wiitala & Contole, P.A., North Palm Beach,
for Appellee.



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