This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on March 29, 2001. The issues were: 1) did the appellant (claimant) sustain a compensable injury on __________; and 2) did the claimant have disability resulting from the injury sustained, and if so, for what periods? The hearing officer found that the claimant did not suffer any compensable injury and, therefore, had no disability. The claimant appealed on the basis that he should have been believed in his account of the injury and accident. The respondent (carrier) urges affirmance on the basis that credibility of the witnesses is the only issue.
DECISION
A timely appeal not having been filed, the decision and order of the hearing officer have become final pursuant to Section 410.169.
Records of the Texas Workers’ Compensation Commission (Commission) show that the decision of the hearing officer was mailed to the claimant on April 5, 2001, under a cover letter of the same date. The claimant, in his appeal, states that he received the hearing officer’s decision and order on April 13, 2001. Pursuant to Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 102.5(d) (Rule 102.5(d)), 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, or, in this case, on April 10, 2001.
Section 410.202(a) provides that a request for appeal shall be filed not later than the 15th day after the date on which the hearing officer’s decision is received. Rule 143.3(c) provides that a request for appeal is presumed to have been 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 the date the hearing officer’s decision is received. Both portions of Rule 143.3(c) must be complied with in order for the appeal to be timely. Although the claimant in her appeal states that she did not receive the hearing officer’s decision until April 13, 2001, the deemed date of receipt was April 10, 2001. The last day for the claimant’s appeal to have been timely mailed was Wednesday, April 25, 2001, and the last day for it to have been received was Monday, April 30, 2001. The claimant’s appeal was postmarked April 24, 2001, and hence was timely mailed but was not received by the Commission until May 1, 2001. The claimant’s appeal not having been received on or before April 30, 2001, was therefore untimely.
The claimant’s appeal being untimely, the decision of the hearing officer has become final. Section 410.169.
Thomas A. Knapp – Appeals Judge
CONCUR:
Susan M. Kelley – Appeals Judge
Philip F. O’Neill – Appeals Judge