This appeal arises under the Texas Workers’ Compensation Act of 1989, TEX. REV. CIV. STAT. ANN. arts. 8308-1.01 et seq. (Vernon Supp. 1992) (1989 Act). On December 10, 1991, a contested case hearing was held in (city), Texas, with (hearing officer) presiding as hearing officer. The hearing officer determined that respondent correctly calculated the temporary income benefits (TIBs) due appellant (claimant below) to be the minimum allowable under the 1989 Act. Appellant had been a part-time employee earning less than $8.50 per hour and had worked less than 13 weeks for her employer prior to her compensable injury. Appellant’s average weekly wages, based upon those the employer paid a similar employee for similar services, were such that she would have received even less than the minimum TIBs when applying the formula provided by Article 8308-4.23(d) (1989 Act). The hearing officer also determined that the Texas Workers’ Compensation Commission (Commission) had not acted incorrectly in not ordering the payment by respondent of an advance of benefits based upon hardship pursuant to Article 8308-4.32 (1989 Act). Appellant contended in her appeal that the hearing officer’s determination that appellant was entitled only to the minimum TIBs based upon her wages was incorrect, and, that the decision denying her an advance payment of TIBs for hardship was not based upon all the facts. While subsequently addressing the sufficiency of the evidence to support the decision below, respondent first contends that appellant failed to timely file her appeal and that the jurisdiction of the Commission’s Appeals Panel has not been properly invoked.
DECISION
Finding that appellant’s request for review was not timely filed, the Decision of the hearing officer is affirmed.
Article 8308-6.41(a) (1989 Act) provides in part as follows:
“A party that desires 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 on which the decision of the hearing officer is received from the division of hearings and shall on the same date serve a copy of the request on the other party . . . .”
Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 143.3(a)(3) (TWCC Rules) provides that a request for review of the hearing officer’s decision shall be filed with the Commission’s central office in (city) “not later than the 15th day after receipt of the hearing officer’s decision; . . .” Rule 143.3(c) goes on to provide the following:
“(c)A request made under this section shall be presumed to be timely filed or timely served if it is:
(1)mailed on or before the 15th day after the date of receipt of the hearing officer’s decision, as provided in subsection (a) of this section; and
(2)received by the commission or other party not later than the 20th day after the date of receipt of the hearing officer’s decision.”
Though not required to address appellate rights at the hearing, the hearing officer commendably conducted the following colloquy at the conclusion of the contested case hearing:
“I will issue a decision based on the evidence of testimony within 10 days of today. If either party is dissatisfied with the decision, you must effect your appeal no later than 15 days from the date the decision is received by you.
I will inform you that my decision goes to (city) and is mailed out of (city).
(Ms. L), your time to run for an appeal will run from the date that you receive the decision by (city). I need to know if I have a current address for you so you can be sure and receive that.
(MS. L): You do at this time.
HEARING OFFICER: Would you give me an address. I would like to make sure that (city) has it. I would like to make sure that (city) has it.
(MS. L): That’s the only address that I have.
HEARING OFFICER: If you would repeat it one more time.
(MS. L): (address), and the zip is (zip code).
HEARING OFFICER: All right. It takes two or three weeks for a decision to come out of (city), so the 15 days starts from the time you receive it out of (city).”
The hearing officer signed this Decision and Order on December 20, 1991. By letter dated January 3, 1992, the Commission’s Division of Hearings & Review forwarded to the parties a copy of the decision and a fact sheet explaining what to do if an appeal is desired. This letter also stated the office and the address to which any such appeal should be directed.
A document entitled “Appellant Request for Appeal,” signed by appellant, contained a certification to the effect that appellant served copies of her request for appeal on the hearing officer and on respondent on January 29, 1992. The envelope in which the Commission received appellant’s request for review was addressed to the hearing officer at the (city), Texas address of the Commission and the postmark bore the date “29 January 1992 PM” and the location “(city), TX (zip code).” This envelope with the enclosed appeal was received at the Commission’s central office on January 31, 1992.
Appellant’s request for review does not state the date she received the Commission’s transmittal letter dated January 3, 1992. Accordingly, we apply the provisions of Rule 102.5(h) (TWCC Rules) providing that “the Commission shall deem the received date to be five days after the date mailed.” Assuming the Commission’s transmittal letter was mailed on the date it bore, that is, on January 3, 1992, appellant is deemed to have received the Decision and Order it enclosed on January 8, 1992. This being so, appellant was required to file her appeal not later than 15 days from January 8, that is, by January 23, 1992. However, her appeal was not mailed until January 29, 1992.
In its timely response to the appeal, respondent attached the affidavit of its counsel stating that on January 9, 1992, appellant called him to discuss the hearing officer’s decision. Even were we to conclude from that affidavit that appellant did not receive the decision until January 9, 1992, the appeal would still be untimely.
Appellant wrote a letter to the Commission’s Appeals Panel, dated February 12, 1992, submitting a rebuttal to respondent’s contention that the appeal was untimely citing Rule 21(a) of the Texas Rules of Civil Procedure and a “Rule 802.” Respondent wrote a letter to the Appeals Panel, dated February 21, 1992, in response to appellant’s letter. Neither of these documents were submitted within the times mandated by Article 8308-6.41(a) (1989 Act) and cannot be considered.
No court has yet reviewed the 15-day appeal time requirement of Article 8308-6.41 (1989 Act). However, cases concerning appeals from the former Industrial Accident Board, as provided for by Section 5 of Article 8307 of the Texas Revised Civil Statutes Annotated (Vernon Supp. 1990), treated such limits as jurisdictional. Texas Workers’ Compensation Commission Appeal No. 91070 decided December 19, 1991. See also Taylor v. Argonaut Southwest Ins. Co., 817 S.W.2d 722, 723 (Tex. App.-Amarillo 1991, n.w.h.) which held that the time limits provision of Section 5 of Article 8307, supra, “is mandatory and jurisdictional to a review of the Board’s action . . . .”
The hearing officer’s decision is affirmed.
Philip F. O’Neill – Appeals Judge
CONCUR:
Stark O. Sanders, Jr. – Chief Appeals Judge
Robert W. Potts – Appeals Judge