Section 410.202(a) provides that to 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. Section 410.202 was amended effective June 17, 2001, to exclude Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code from the computation of time in which to file an appeal or a response. Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 143.3(e) (Rule 143.3(e)) 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 Texas Workers’ Compensation Commission (Commission) not later than the 20th day after the date of receipt of the hearing officer’s decision. The Appeals Panel has held that both portions of Rule 143.3(e) must be complied with for an appeal to be timely. Texas Workers’ Compensation Commission Appeal No. 041319, decided July 27, 2004.
Records of the Commission reflect that the hearing officer’s decision was mailed to the claimant on May 4, 2005. Pursuant to Rules 102.5(d) and 143.3(d)(1), unless the great weight of the evidence indicates otherwise, the claimant was deemed to have received the hearing officer’s decision five days later, or on Monday, May 9, 2005. Although the claimant states that she received the hearing officer’s decision on May 14, 2005, the Appeals Panel has held that when Commission records show mailing to the claimant on a particular day at the correct address, the mere assertion that the decision was received after the deemed date of receipt is not sufficient to extend the date of receipt past the deemed date of receipt provided by Commission rule. Texas Workers’ Compensation Commission Appeal No. 010379, decided March 22, 2001. Commission records reflect that the hearing officer’s decision was mailed to the claimant on May 4, 2005, at the same address as the claimant provided on the contested case hearing sign-in sheet, and that the claimant did not notify the Commission of a change of address until July 14, 2005. Thus, the hearing officer’s decision was mailed to the claimant at the most recent address the Commission had for the claimant at the time of mailing in accordance with Rule 102.4(a).
With a deemed date of receipt of the hearing officer’s decision on May 9, 2005, in accordance with amended Section 410.202, the claimant’s appeal had to be filed or mailed no later than May 31, 2005. We note that Memorial Day, which fell on Monday, May 30, 2005, is listed as a national holiday in Texas Government Code Section 662.003(a) and is excluded in computing the 15-day period. The claimant’s appeal was mailed to the Commission via United States Postal Service with a postage paid sticker dated June 6, 2005, and was received by the Commission on June 10, 2005. Since the appeal was neither mailed nor filed on or before May 31, 2005, the appeal is untimely.
Having determined that the hearing officer’s decision and order have become final under Section 410.169 because a timely appeal was not filed with the Commission, the Appeals Panel does not have jurisdiction to review the hearing officer’s decision.
The true corporate name of the insurance carrier is SENTRY INSURANCE, A MUTUAL COMPANY and the name and address of its registered agent for service of process is
TREVA DURHAM
1000 HERITAGE CENTER CIRCLE
ROUND ROCK, TEXAS, 78664.
Robert W. Potts
CONCUR:
Thomas A. Knapp – Appeals Judge
Margaret L. Turner – Appeals Judge