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. Effective May 1, 2005, Rule 102.5(d) was amended to read as follows:
(d)For purposes of determining the date of receipt for those written communications sent by the Commission which require the recipient to perform an action by a specific date after receipt, unless the great weight of evidence indicates otherwise, the Commission shall deem the received date to be the earliest of: five days after the date mailed via United States Postal Service regular mail; the first working day after the date the written communication was placed in a carrier’s (City) representative box; or the date faxed or electronically transmitted.
See also Rule 143.3(d)(2), which provides for deemed receipt of the hearing officer’s decision the first working day after the written communication was placed in the carrier’s (City) representative’s box, unless the great weight of evidence indicates otherwise.
A Commission stamp on the cover letter to the hearing officer’s decision with the hearing officer’s decision attached thereto reflects that the hearing officer’s decision was placed in carrier 1’s (City) representative’s box on May 24, 2005. Another date stamp reflects that carrier 1’s (City) representative received the hearing officer’s decision on May 24, 2005. Carrier 1 is incorrect in stating that the deemed receipt date under Rule 102.5(d) was May 29, 2005, because the first working day after May 24, 2005, which was the day the hearing officer’s decision was placed in carrier 1’s (City) representative’s box, was Wednesday, May 25, 2005, and thus May 25, 2005, was the deemed date of receipt under Rules 102.5(d) and 143.3(d)(2). The 15th day after carrier 1’s deemed date of receipt of May 25, 2005, excluding Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code, was Thursday, June 16, 2005. Carrier 1’s appeal is dated June 20, 2005, and, according to the U.S. postage stickers on the envelopes, both copies of the appeal were mailed to the Commission on June 20, 2005. Because carrier 1’s appeal was neither mailed nor filed on or before June 16, 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 insurance carrier 1 is PACIFIC EMPLOYERS INSURANCE COMPANY and the name and address of its registered agent for service of process is
ROBIN M. MOUNTAIN
6600 CAMPUS CIRCLE DRIVE EAST, SUITE 300
IRVING, TEXAS 75063.
The true corporate name of insurance carrier 2 is NEW HAMPSHIRE INSURANCE COMPANY and the name and address of its registered agent for service of process is
CORPORATION SERVICE COMPANY
800 BRAZOS STREET, SUITE 750, COMMODORE 1
AUSTIN, TEXAS 78701-2554.
Robert W. Potts
CONCUR:
Thomas A. Knapp – Appeals Judge
Margaret L. Turner – Appeals Judge