This appeal arises under the Texas Workers’ Compensation Act, TEX. REV. CIV. STAT. ANN. art. 8308-1.01 et seq. (Vernon Supp. 1993) (1989 Act). On May 20, 1993, a contested case hearing (CCH) was held in (city), Texas, with (hearing officer) presiding. The issues to be determined at the CCH were: Should Claimant be released from the effects of the agreement signed on December 10, 1992? Has Claimant reached maximum medical improvement (MMI) and if so, when? The hearing officer determined that a benefit review conference (BRC) agreement of December 10, 1992, was binding on the parties and that claimant reached MMI on October 1, 1991, with a 5% impairment rating.
Appellant, claimant herein, requests that the Appeals Panel review the evidence, reasserts that she did not understand the BRC agreement of December 10, 1992, that she was not informed that attorney fees would be deducted from her payments and requests release from the BRC agreement. Respondent, carrier herein, responds that claimant’s appeal was not timely filed and in the alternative responds that the decision is supported by the evidence and requests that we affirm the decision.
DECISION
Finding the appeal was timely filed, nonetheless the decision of the hearing officer is affirmed.
Upon review of the Texas Workers’ Compensation Commission (Commission) files we determined that the decision of the hearing officer was distributed, by mail, on June 21, 1993 (notwithstanding the June 18, 1993 date on the cover letter). Claimant in her appeal does not assert when the decision was received, therefore, the provisions of Commission Rule 102.5(h) (Tex. W.C. Comm’n 28 TEX. ADMIN. CODE § 102.5(h) are invoked. Rule 102.5(h) provides:
(h)For purposes of determining the date of receipt for those notices and other written communications which require action by a date specific after receipt, the commission shall deem the received date to be five days after the date mailed.
In that the decision was mailed on June 21, 1993, the “deemed” date of receipt is June 26, 1993. Article 8308-6.41(a) requires that an appeal shall be filed with the Appeals Panel “not later than the 15th day after the date of which the decision of the hearing officer is received . . . .” If the deemed receipt date is June 26, 1993, 15 days from that date would be Sunday July 11, 1993. In that the 15th date is on a Sunday, pursuant to Rules 102.3(a)(3) and 102.7 the period is extended to the next day that is not a Saturday, Sunday or legal holiday, which would be Monday, July 12, 1993 as the statutory date by which an appeal must be filed. Claimant’s appeal was postmarked July 12, 1993, and received July 14, 1993. Consequently the appeal was timely pursuant to Rule 143.3(c)(1)(2).
Claimant sustained a compensable back injury on (date of injury). She subsequently retained an attorney. Claimant testified that after her injury during the remainder of 1991, and particularly during the summer of that year she worked for at least five different employers for various periods of time, usually doing telephone work or telemarketing. Claimant’s treating doctor was (Dr. H). Dr. H diagnosed claimant as having lumbosacral strain and “traumatic injury to the left hip and leg.” By letter dated May 12, 1992, Dr. H assessed MMI on October 1, 1991, with “an impairment rating of 3-5%.” Claimant in March 1992, apparently was in an auto accident but testified she received no injuries or medical treatment because of that accident. A carrier requested doctor saw claimant on October 22, 1992, and on a Report of Medical Evaluation (TWCC-69) certified MMI on 10-22-92 with a five percent whole body impairment rating. The carrier’s position during 1991 and until latter 1992 was that claimant did not have disability because she had been working and that she was not entitled to temporary income benefits (TIBS). Claimant testified that she fired her attorney on October 13, 1992. A BRC was requested by claimant and held on December 10, 1992. There is testimony and the hearing officer recites that the purpose of the BRC was to determine claimant’s periods of disability, MMI and impairment rating. The fact that claimant had returned to work and had worked in 1991 was discussed. The BRC report of that conference is not in the record, however, it is undisputed that a BRC agreement was entered into on 12-10-92. The BRC agreement was a compromise where carrier agreed to pay TIBS for 21-3/7 weeks, which was the time claimant was not working between 2/11/91 and 9/11/91 less a compromise 13 weeks claimant agreed she had worked. MMI was agreed upon as being 10/1/91, the date Dr. H assessed MMI. The parties agreed to a five percent impairment rating. The BRC agreement was reduced to writing on a Benefit Review Conference Agreement (TWCC-24) form. The TWCC-24 was signed by claimant, carrier representative and the benefit review officer (BRO). The TWCC-24 shows the agreement to be “[t]hat 21-3/7 weeks of TIBS will be paid and an impairment rating of 5% is adopted.” Carrier then paid the benefits it agreed to pay.
Claimant subsequently requested another BRC which was held on April 6, 1993, alleging she did not understand the effects of the December 10, 1992, BRC agreement, that she believes MMI should be October 22, 1992, the date that carrier’s doctor certified MMI and seeks to be relieved from the effects of the agreement signed on 12/10/92. Claimant did not then, nor did she at the CCH, disagree with the five percent whole body impairment rating. Claimant testified that she did not understand that previous payments of TIBS and the awarded attorney’s fees would be deducted from the overall TIBS payment. Claimant also contended, at the CCH, that she did not understand that TIBS would end on MMI.
Carrier contended that claimant understood the BRC agreement but that claimant now wants more money in the form of more TIBS. Carrier contends that the agreement was fair and that claimant has little, if any, evidence of disability pointing out that claimant “continually worked during the . . . year and a half period between her injury and when she saw [employer’s doctor].”
The hearing officer determined in pertinent part:
FINDINGS OF FACT
3.[Dr. H], Claimant’s treating doctor, concluded that Claimant reached maximum medical improvement on October 1, 1991, with a 3-5% impairment rating.
4.. . . Carrier requested doctor, concluded that Claimant reached maximum medical improvement on October 22, 1992, with a 5% impairment rating.
5.Claimant worked for several employers after her injury on (date of injury).
6.Claimant attended a Benefit Review Conference on December 10, 1992, and took an active role in the conference.
7.Claimant was unrepresented at the Benefit Review Conference of December 10, 1992.
8.Claimant voluntarily signed the Benefit Review Conference Agreement of December 10, 1992, indicating that she understood the terms of the agreement.
9.The Benefit Review Conference Agreement resolved the periods of Claimant’s disability and determined that Claimant had reached maximum medical improvement on October 1, 1991, with a 5% impairment rating.
10.The Benefit Review Conference agreement of December 10, 1992, is binding on the Claimant and the Carrier.
11.Claimant reached maximum medical improvement on October 1, 1991, with a 5% impairment rating.
CONCLUSIONS OF LAW
2.Claimant did not establish good cause to be released of the effects of the Benefit Review Conference Agreement of December 10, 1992.
3.The Benefit Review Conference Agreement of December 10, 1992, is binding on Claimant and Carrier.
4.Claimant reached maximum medical improvement on October 1, 1991, with a 5% impairment rating.
Claimant, on appeal, advanced many of the arguments she made at the CCH.
In considering whether the December 10, 1992 agreement was binding we are guided by the provisions of Article 8308-6.15(a) and (c) of the 1989 Act and Tex. W.C. Comm’n, TEX. ADMIN. CODE § 147.4 (Rule 147.4). Article 8308-6.15(a) provides, in part, that a dispute may be resolved at the BRC either in whole or in part by mutual agreement which shall be in writing and signed by the parties and the BRO. Article 8308-6.15(c) provides, in part, that if the claimant is not represented by an attorney (which is the case here), such agreement shall remain binding on the claimant through the final conclusion of all matters relating to the claim while the claim is pending before the Texas Workers’ Compensation Commission (Commission), unless the Commission for good cause shall relieve the claimant of the effect of such agreement. And see Rule 147.4(d)(2). The BRC agreement was prepared on a Form TWCC-24, was signed by the claimant, carrier’s representative and the BRO, and thus complied with Rules 147.2 and 147.3. Rule 147.4(b) provides that the presiding officer at the benefit proceeding will review the agreement to ascertain that it complies with the 1989 Act and the Commission’s rules, and if it does comply, sign it and provide copies to the parties.
The “good cause” argument advanced by claimant at the CCH for being relieved of the effects of the agreement was that she did not understand the agreement, that she was not informed certain deductions would be made from the payments and that since she was still receiving medical care that the carrier’s doctor’s certification of MMI on October 22, 1992, was more accurate than the agreed upon MMI date of October 1, 1991.
The standard to be used by the hearing officer in determining whether claimant should be released from the effects of the December 10, 1992, BRC agreement is “good cause.” The hearing officer heard testimony from both claimant and the insurance carrier representative who signed the BRC agreement on behalf of the carrier. The hearing officer also had an opportunity to view the demeanor of the witnesses and to question them about their recollection of the events which led to the December 10th BRC agreement. We have frequently noted that the hearing officer is the sole judge of the weight to be given the evidence. Article 8308-6.34(e). Texas Workers’ Compensation Commission Appeal No. 93512, decided August 4, 1993; Texas Workers’ Compensation Commission Appeal No. 93505 decided August 4, 1993. Burelsmith v. Liberty Mutual Insurance Co., 568 S.W.2d 695 (Tex. App. – Amarillo 1978, no writ). The hearing officer, after hearing the testimony, considering the evidence and observing the witnesses determined that claimant understood the terms of BRC agreement that she signed and there was no good cause for claimant to be released from the effects of the agreement. In reviewing the evidence and the record we find the hearing officer did not abuse his discretion. The binding effect of the agreement and the decision that there was not good cause to relieve claimant from the agreement were both supported by sufficient evidence. See Texas Workers’ Compensation Commission Appeal No. 92124, decided May 11, 1992.
Claimant also apparently disputes the hearing officer’s decision regarding the admissibility of certain evidence that she offered at the CCH. Claimant’s Exhibit No. 6 was an “Impairment Rating/Assessment” by a physical therapist dated May 4, 1993, giving an 11% impairment rating. The hearing officer found there was good cause for not previously exchanging this document, but that it was not admitted as not being relevant to the two issues before the hearing officer, being the BRC agreement and MMI. Claimant’s Exhibit No. 7, a letter to the Commission, was not admitted as not having been exchanged. We find that the hearing officer did not abuse his discretion is not admitting claimant’s exhibits, discussed above.
The decision and order are not against the great weight and preponderance of the evidence and are affirmed.
Thomas A. Knapp – Appeals Judge
CONCUR:
Joe Sebesta – Appeals Judge
Robert W. Potts – Appeals Judge