23-947. Time within which hearing must be
requested; definition
A. A hearing on any question relating to a claim shall not be granted unless the
employee has previously filed an application for compensation within the time and in the
manner prescribed by section 23-1061 and the request for a hearing is filed within ninety
days after the notice sent under section 23-1061, subsection F or within ninety days of
notice of a determination by the commission, insurance carrier or self-insuring employer
under section 23-1047 or 23-1061, except that an employer who is subject to and fails to
comply with section 23-961 or 23-962 must file a request for a hearing within thirty days
of notice of a determination by the commission, or within ten days of all other awards
issued by the commission.
B. As used in this section, "filed" means that the request for a hearing is in the
possession of the commission. Failure to file with the commission within the required
time by a party means that the determination by the commission, insurance carrier or
self-insuring employer is final and res judicata to all parties. The industrial
commission or any court shall not excuse a late filing unless any of the following
applies:
1. The person to whom the notice is sent does not request a hearing because of
justifiable reliance on a representation by the commission, employer or carrier. In this
paragraph, "justifiable reliance" means that the person to whom the notice is sent has
made reasonably diligent efforts to verify the representation, regardless of whether the
representation is made pursuant to statutory or other legal authority.
2. At the time the notice is sent the person to whom it is sent is suffering from
insanity or legal incompetence or incapacity, including minority.
3. The person to whom the notice is sent shows by clear and convincing evidence
that the notice was not received.
C. The late filing shall not be excused under subsection B of this section if the
person to whom the notice is sent or the person's legal counsel knew or, with the
exercise of reasonable care and diligence, should have known of the fact of the notice at
any time during the filing period.
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