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 October 12, 2001. The hearing officer resolved the disputed issues by deciding that the appellant (claimant) is not entitled to supplemental income benefits for the third and fourth quarters. The claimant appealed and the respondent (self-insured) responded.
DECISION
The hearing officer’s decision and order have become final under Section 410.169 because the claimant’s request for appeal was not timely filed with the Texas Workers’ Compensation Commission (Commission).
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.” Pursuant to Section 410.202(d), for appeals filed on or after June 17, 2001, Saturdays and Sundays and holidays listed in Section 662.003, Government Code, are not included in the computation of the time in which a request for appeal under subsection (a) or a response under subsection (b) must be filed. Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 143.3(c) (Rule 143.3(c)) provides that a request for appeal 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 in order for an appeal to be timely. Texas Workers’ Compensation Commission Appeal No. 94065, decided March 1, 1994; Texas Workers’ Compensation Commission Appeal No. 94111, decided March 10, 1994.
According to Commission records, the hearing officer’s decision was mailed to the claimant on October 17, 2001. The claimant states in her appeal that she received the decision on October 20, 2001. We have held that the five-day deemed date of receipt does not control over an earlier, signed acknowledgment of receipt. Texas Workers’ Compensation Commission Appeal No. 950972, decided August 7, 1995. The claimant had until November 12, 2001, to mail the request for appeal to the Commission, which was the 15th day after the date of receipt, not including Saturdays and Sundays and holidays listed in Section 662.003 of the Government Code. The envelope in which the claimant’s appeal was mailed to the Commission contains a USPS postage paid stamp dated November 2, 2001, but also has a postmark that is partially illegible but appears to contain a date of November 15, 2001. There are several things that are marked out or covered over on the envelope (it may be that the appeal was returned to the claimant for insufficient postage because, in addition to the postage paid sticker, there is a postage stamp).
The 20th day after the claimant’s receipt of the hearing officer’s decision, not counting Saturdays and Sundays and holidays listed in Section 662.003, Government Code, was November 19, 2001, and that is the date by which the appeal had to have been received by the Commission under Rule 143.3(c). According to the appeals file, the Commission first received a copy of the claimant’s appeal from the self-insured on November 28, 2001, by facsimile transmission. The request for appeal which the claimant mailed to the Commission was received by the Commission on December 3, 2001. Thus, even if the request for appeal was timely mailed to the Commission, which we are not certain of given the partially illegible postmark, the appeal would still be untimely because it was not received by the Commission until after November 19, 2001; the earliest date of receipt being November 28, 2001.
The hearing officer’s decision and order have become final under Section 410.169.
The true corporate name of the insurance carrier is STATE OFFICE OF RISK MANAGEMENT (a self-insured governmental entity) and the name and address of its registered agent for service of process is
For service in person the address is:
RON JOSSELET, EXECUTIVE DIRECTOR
STATE OFFICE OF RISK MANAGEMENT
300 W. 15TH STREET
WILLIAM P. CLEMENTS, JR. STATE OFFICE BUILDING, 6TH FLOOR
AUSTIN, TEXAS 78701.
For service by mail the address is:
RON JOSSELET, EXECUTIVE DIRECTOR
THE STATE OFFICE OF RISK MANAGEMENT
P.O. BOX 13777
AUSTIN, TEXAS 78711-3777.
Robert W. Potts – Appeals Judge
CONCUR:
Elaine M. Chaney – Appeals Judge
Michael B. McShane – Appeals Judge