Claimant Waived His Right To Litigate A Timely Controversion Issue
APPEAL 950140 – MARCH 9, 1995
The Claimant litigated a course and scope issue relating to a 1991 injury through the dispute resolution procedure and lost. Thereafter, he raised the issue of whether there had been a timely controversion. The AP stated that the TWCC had jurisdiction to make a determination on the timeliness and sufficiency of the Carrier’s contest of compensability even though the AP had already decided that the claim was not compensable. The AP also stated, however, that the Claimant had waived his right to raise the issue.
The AP referred to Appeal 941333 in which it held that an issue of extent of injury was waived when the issue of impairment rating had already been determined. The AP stated that an issue of timely dispute of compensability may not be raised later without the consent of the parties if it was not raised at the BRC. Because of this, it would be incongruous to hold that the issue may be revived at a later proceeding. An issue of timely contest is closely linked with the issue of compensability. It is a threshold issue that should be determined at the same time as a compensability issue so that the claim can be processed in an orderly fashion. Different issues in the same case should not go separately through the dispute resolution process because the result might be conflicting determinations as to whether the Claimant is entitled to benefits.
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