This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on July 12, 2000. The issues at the CCH were whether the appellant (claimant) was barred from pursuing Texas workers’ compensation benefits because of an election to receive benefits under his group health insurance policy; whether the claimant had disability resulting from an injury of __________; whether the claimant sustained an injury in the form of an occupational disease on __________; and whether the claimant had timely reported the claimed injury to his employer or had good cause for failing to do so. The hearing officer found that the claimant had not made an election of remedies; that he had sustained an injury in the form of an occupational disease, but had not timely reported the injury to the employer and did not have good cause for failing to do so; and that the claimant did not have disability resulting from the __________ injury. The claimant appealed, expressing disagreement with the hearing officer’s determinations and further appealing the hearing officer’s determination of the identity of the employer and the respondent (carrier) in this matter. The carrier replied to the points raised on appeal by the claimant, but also asserted that the claimant had failed to file an appeal in a timely manner.
DECISION
A timely appeal not having been filed, the decision and order of the hearing officer have become final pursuant to Section 410.169.
Pursuant to Section 410.202 and Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 143.3(c) (Rule 143.3(c)), an appeal, to be timely, must be filed or mailed not later than the 15th day after the date of receipt of the hearing officer’ decision. Records of the Texas Workers’ Compensation Commission (Commission) show that the hearing officer’s decision was mailed to the claimant on August 21, 2000, under a cover letter of the same date. Under Rule 102.5(d), as amended effective August 29, 1999, the claimant is deemed to have received the hearing officer’s decision on August 26, 2000, a Saturday, five days after it was mailed. The claimant had 15 days, or until September 10, 2000, to mail his request for review to the Commission. The USPS postmark indicates that appeal was mailed on September 12, 2000.
We note that the claimant filed a response to the carrier’s allegation that the claimant’s appeal had not been timely filed. In that response, the claimant’s attorney states that the claimant had never received the hearing officer’s Decision and Order by mail. Rule 102.5(d) provides that, unless the great weight of evidence indicates otherwise, the claimant is deemed to have received the hearing officer’s decision five days after it was mailed. The Appeals Panel has held that, where Commission records show mailing on a particular day to the address confirmed by the claimant as being correct, a mere statement that the decision was not received until a later date, or in this case not at all, is not sufficient to extend the date of receipt past the deemed date of receipt. Texas Workers’ Compensation Commission Appeal No. 990170, decided March 18, 1999 (Unpublished); Texas Workers’ Compensation Commission Appeal No. 982248, decided November 5, 1998. The address to which the hearing officer’s decision was mailed to the claimant is the same address listed for the claimant on the benefit contested case sign-in sheet. The claimant offers no evidence that the hearing officer’s decision was misdelivered.
The appeal being untimely, the jurisdiction of the Appeals Panel was not properly invoked and the decision and order of the hearing officer have become final under Section 410.169.
Kenneth A. Huchton – Appeals Judge
CONCUR:
Elaine M. Chaney – Appeals Judge
Gary L. Kilgore – Appeals Judge