23-1061

23-1061. Notice of accident; form of notice;
claim for compensation; reopening; payment of compensation

A. Notwithstanding section 23-908, subsection E, no claim for compensation shall be
valid or enforceable unless the claim is filed with the commission by the employee, or if
resulting in death by the parties entitled to compensation, or someone on their behalf,
in writing within one year after the injury occurred or the right thereto accrued. The
time for filing a compensation claim begins to run when the injury becomes manifest or
when the claimant knows or in the exercise of reasonable diligence should know that the
claimant has sustained a compensable injury. Except as provided in subsection B of this
section, neither the commission nor any court shall have jurisdiction to consider a claim
which is not timely filed under this subsection, except if the employee or other party
entitled to file the claim has delayed in doing so because of justifiable reliance on a
material representation by the commission, employer or insurance carrier or if the
employee or other party entitled to file the claim is insane or legally incompetent or
incapacitated at the time the injury occurs or the right to compensation accrues or
during the one-year period thereafter. If the insanity or legal incompetence or
incapacity occurs after the one-year period has commenced, the running of the remainder
of the one-year period shall be suspended during the period of insanity or legal
incompetence or incapacity. If the employee or other party is insane or legally
incompetent or incapacitated when the injury occurs or the right to compensation accrues,
the one-year period commences to run immediately upon the termination of insanity or
legal incompetence or incapacity. The commission upon receiving a claim shall give notice
to the carrier.

B. Failure of an employee or any other party entitled to compensation to file a
claim with the commission within one year or to comply with section 23-908 shall not bar
a claim if the insurance carrier or employer has commenced payment of compensation
benefits under section 23-1044, 23-1045 or 23-1046, except that the payments provided for
by section 23-1046, subsection A, paragraph 1 and section 23-1065, subsection A shall not
be considered compensation benefits for the purposes of this section.

C. If the commission receives a notification of the injury, the commission shall
send a claim form to the employee.

D. The issue of failure to file a claim must be raised at the first hearing on a
claim for compensation in respect to the injury or death.

E. Within ten days after receiving notice of an accident, the employer shall inform
his insurance carrier and the commission on such forms as may be prescribed by the
commission.

F. Each insurance carrier and self-insuring employer shall report to the commission
a notice of the first payment of compensation and shall promptly report to the commission
and to the employee by mail at his last known address any denial of a claim, any change
in the amount of compensation and the termination thereof, except that claims for
medical, surgical and hospital benefits which are not denied shall be reported to the
commission in the form and manner determined by the commission. In all cases where
compensation is payable, the carrier or self-insuring employer shall promptly determine
the average monthly wage pursuant to section 23-1041. Within thirty days of the payment
of the first installment of compensation, the carrier or self-insuring employer shall
notify the employee and commission of the average monthly wage of the claimant as
calculated, and the basis for such determination. The commission shall then make its own
independent determination of the average monthly wage pursuant to section 23-1041. The
commission shall within thirty days after receipt of such notice notify the employee,
employer and carrier of such determination. The amount determined by the commission shall
be payable retroactive to the first date of entitlement. The first payment of
compensation shall be accompanied by a notice on a form prescribed by the commission
stating the manner in which the amount of compensation was determined.

G. Except as otherwise provided by law, the insurance carrier or self-insuring
employer shall process and pay compensation and provide medical, surgical and hospital
benefits, without the necessity for the making of an award or determination by the
commission.

H. On a claim that has been previously accepted, an employee may reopen the claim
to secure an increase or rearrangement of compensation or additional benefits by filing
with the commission a petition requesting the reopening of the employee's claim upon the
basis of a new, additional or previously undiscovered temporary or permanent condition,
which petition shall be accompanied by a statement from a physician setting forth the
physical condition of the employee relating to the claim. A claim shall not be reopened
if the initial claim for compensation was previously denied by a notice of claim status
or determination by the commission and the notice or determination was allowed to become
final and no exception applies under section 23-947 excusing a late filing to request a
hearing. A claim shall not be reopened because of increased subjective pain if the pain
is not accompanied by a change in objective physical findings. A claim shall not be
reopened solely for additional diagnostic or investigative medical tests, but expenses
for any reasonable and necessary diagnostic or investigative tests that are causally
related to the injury shall be paid by the employer or the employer's insurance carrier.
Expenses for reasonable and necessary medical and hospital care and laboratory work shall
be paid by the employer or the employer's insurance carrier if the claim is reopened as
provided by law and if these expenses are incurred within fifteen days of the date that
the petition to reopen is filed. The payment for such reasonable and necessary medical,
hospital and laboratory work expense shall be paid for by the employer or the employer's
insurance carrier if the claim is reopened as provided by law and if such expenses are
incurred within fifteen days of the filing of the petition to reopen. Surgical benefits
are not payable for any period prior to the date of filing a petition to reopen, except
that surgical benefits are payable for a period prior to the date of filing the petition
to reopen not to exceed seven days if a bona fide medical emergency precludes the
employee from filing a petition to reopen prior to the surgery. No monetary compensation
is payable for any period prior to the date of filing the petition to reopen.

I. Upon the filing of a petition to reopen a claim the commission shall in writing
notify the employer's insurance carrier or the self-insuring employer, which shall in
writing notify the commission and the employee within twenty-one days after the date of
such notice of its acceptance or denial of the petition. The reopened claim shall be
processed thereafter in like manner as a new claim.

J. The commission shall investigate and review any claim in which it appears to the
commission that the claimant has not been granted the benefits to which such claimant is
entitled. If the commission determines that payment or denial of compensation is improper
in any way, it shall hold a hearing pursuant to section 23-941 within sixty days after
receiving notice of such impropriety. Any claim for temporary partial disability
benefits under this subsection must be filed with the commission within two years after
the date the claimed entitlement to compensation accrued or within two years after the
date on which an award for benefits encompassing the entitlement period becomes final. A
claim for temporary partial disability compensation shall be deemed to accrue when the
employee knew or with the exercise of reasonable diligence should have known that the
carrier, self-insured employer or special fund denied or improperly paid compensation. A
claim for temporary partial disability benefits shall not be deemed to have accrued any
earlier than the effective date of this amendment to this subsection.

K. When there is a dispute as to which employer, or insurance carrier, is liable
for the payment of a compensable claim, the commission, by order, may designate the
employer or insurance carrier which shall pay the claim. Payment shall begin within
fourteen days after the employer or insurance carrier has been ordered by the commission
to commence payment. When a final determination has been made as to which employer or
insurance carrier is actually liable, the commission shall direct any necessary monetary
adjustment or reimbursement among the parties or carriers involved.

L. Upon application to the commission, and for good cause shown, the commission may
direct that a document filed as a claim for compensation benefits be designated as a
petition to reopen, effective as of the original date of filing. In like manner upon
application and good cause shown, the commission may direct that a document filed as a
petition to reopen be designated a claim for compensation benefits, effective as of the
original date of filing.

M. If the insurance carrier or self-insurer does not issue a notice of claim status
denying the claim within twenty-one days from the date the carrier is notified by the
commission of a claim or of a petition to reopen, the carrier shall pay immediately
compensation as if the claim were accepted, from the date the carrier is notified by the
commission of a claim or petition to reopen until the date upon which the carrier issues
a notice of claim status denying such claim. Compensation includes medical, surgical and
hospital benefits. This section shall not apply to cases involving seven days or less of
time lost from work.