Following a contested case hearing held on September 14, 2000, pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act), the hearing officer,resolved the disputed issues by determining that the appellant (claimant) did not sustain a compensable injury on __________ or __________; that the claimant timely reported the claimed injury to her employer; that the respondent (carrier) did not waive its right to contest the compensability of the claimed injury because the claimant did not actually sustain an injury; and that the claimant did not have disability. The claimant has appealed, urging that the evidence established that she sustained the claimed injury and had disability; that the carrier waived its right to contest compensability because it failed to dispute the claim within seven days of receiving written notice; and that the hearing officer erred in going beyond the disputed issues to find that the claimant did not in fact sustain an injury at all, let alone a compensable injury. The carrier urges in response that the evidence is sufficient to support the challenged determinations and that the hearing officer did not commit reversible error.
DECISION
A timely appeal not have been filed with the Texas Workers’ Compensation Commission (Commission) and the jurisdiction of the Appeals Panel not having been properly invoked, the decision and order of the hearing officer have become final pursuant to Section 410.169.
Section 410.202(a) provides that “[t]o appeal the decision of a hearing officer, a party shall file a written request for 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 and shall on the same date serve a copy of the request for appeal on the other party.” Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 143.3(c) (Rule 143.3(c)) provides that a request for review shall be presumed to be timely filed if it is: (1) mailed on or before the 15th day after the date of receipt of the hearing officer’s decision; and (2) received by the Commission not later than the 20th day after the date of receipt of the hearing officer’s decision. Both portions of Rule 143.3(c) must be complied with for an appeal to be timely. Texas Workers’ Compensation Commission Appeal No. 94065, decided March 1, 1994.
Records of the Commission reflect that the hearing officer’s decision was distributed to the parties on October 16, 2000, under a cover letter of the same date. Rule 102.5(d), effective August 29, 1999, 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. Accordingly, the claimant is deemed to have received the hearing officer’s decision on October 21, a Saturday. The claimant had 15 days after October 21 to mail his request for review but since the 15th day fell on Sunday, November 5, he had until the following Monday, November 6, to mail it. Rule 102.3(a)(3). The postmarked date on the envelope with the claimant’s request for review reflects that it was mailed on November 6 and, thus, the claimant has complied with the first prong of Rule 143.3(c). However, the request also had to be received by the Commission by the 20th day after the claimant received the decision, that is, by November 10. The envelope was date-stamped received on November 13 and thus the request for review is untimely. The envelope reflects that the claimant’s request was mailed to a prior address of the Commission notwithstanding that the correct address was specified in the Commission’s cover letter.
The hearing officer’s decision and order have become final pursuant to Section 410.169.
Philip F. O’Neill – Appeals Judge
CONCUR:
Kathleen C. Decker – Appeals Judge
Susan M. Kelley – Appeals Judge