This appeal arises under the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act) (formerly V.A.C.S., Article 8308-1.01 et seq.). At a contested case hearing held in (city), Texas, on August 3, 1993, the hearing officer, (hearing officer), made certain findings of fact including the facts that the appellant (claimant) was certified to have reached maximum medical improvement (MMI) on September 18, 1992, with an impairment rating (IR) of seven percent, that claimant received notification of such no later than October 15, 1992, and that he did not dispute the MMI date and IR until February 5, 1993. Based on these findings, the hearing officer concluded that claimant reached MMI on September 18, 1992, with an IR of seven percent, and that he did not timely dispute the certification of MMI and the IR pursuant to the provisions of Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.5(e) (Rule 130.5(e)). In his request for review, claimant takes issue with the hearing officer’s determinations and asserts, as he did at the hearing, that had a designated doctor been appointed to examine him, claimant would have been assigned a higher IR. The respondent (carrier) contends in its response that claimant’s request for review was untimely and, alternatively, that the evidence sufficiently supports the hearing officer’s determinations.
DECISION
Determining that the request for review was not timely filed and that the jurisdiction of the Appeals Panel has not been properly invoked, the decision of the hearing officer has become final by operation of law.
Our reasoning in this case is the same as was discussed in Texas Workers’ Compensation Commission Appeal No. 92080, decided April 14, 1992. The 1989 Act, Section 410.202(a), provides, in part, that a party desiring to appeal the decision of the hearing officer shall file a written appeal with the Appeals Panel not later than the 15th day after the date the hearing officer’s decision is received from the Texas Workers’ Compensation Commission’s (Commission) hearings division. Rule 143.3(a) provides that a request for review be filed with the Commission’s central office in (city) not later than the 15th day after the date of receipt of the hearing officer’s decision. Rule 143.3(c) provides that a request shall be presumed to be timely filed if it is mailed on or before the 15th day after the date of receipt of the hearing officer’s decision and is received by the Commission not later than the 20th day after such date. The hearing officer’s decision in this case, signed on August 30, 1993, was distributed by the Commission’s hearings division on September 1, 1993. Claimant does not indicate the date he received the decision and thus we apply Rule 102.5(h) which provides, in part, that “the commission shall deem the received date to be five days after the date mailed.” Accordingly, claimant is deemed to have received the decision on September 6, 1993, and his appeal was required to be filed with the Appeals Panel not later than 15 days thereafter, that is, on September 21, 1993. Claimant’s request for review, correctly addressed, was dated November 3, 1993, bore the postmark date of November 3, 1993, and was received by the Commission on November 4, 1993.
Since claimant’s request for review was not mailed until November 3, 1993, his appeal was untimely and, consequently, the jurisdiction of the Appeals Panel was not properly invoked.
Notwithstanding that we do not decide this appeal, we reviewed the record and are satisfied that had our jurisdiction been properly invoked, we would have affirmed the hearing officer’s decision. The evidence sufficiently showed that claimant received notice of the seven percent IR assigned him by October 15, 1992, and that he did not dispute the rating until February 5, 1993, well beyond the 90 days allowed by Rule 130.5(e). Further, the reports of both doctors who assigned MMI dates and ratings stated that claimant reached MMI on September 18, 1992, and assigned a seven percent rating.
Pursuant to Section 410.169 and Rule 142.16(f), the decision of the hearing officer has become final.
Philip F. O’Neill – Appeals Judge
CONCUR:
Stark O. Sanders, Jr. – Chief Appeals Judge
Susan M. Kelley – Appeals Judge