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 § 102.5(d) (Rule 102.5(d)) amended effective May 1, 2005, provides in pertinent part that for purposes of determining the date of receipt for those written communications sent by the Texas Workers’ Compensation Commission (Commission) which require the recipient to perform an action by a specific date after receipt, unless the great weight of the evidence indicates otherwise, the Commission shall deem the received date 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 on the first working day after the written communication was placed in the carrier’s (City) representative’s box, unless the great weight of the evidence indicates otherwise. 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 Commission not later than the 20th day after the date of receipt of the hearing officer’s decision. Both portions of Rule 143.3(e) must be complied with for an appeal to be timely. Texas Workers’ Compensation Commission Appeal No. 042688, decided December 1, 2004.
Records of the Commission reflect that the hearing officer’s decision was placed in the carrier’s (City) representative’s box on June 1, 2005. Pursuant to Rules 102.5(d) and 143.3(d)(2) the carrier is deemed to have received the hearing officer’s decision on Wednesday, June 2, 2005, unless the great weight of the evidence indicates otherwise. The carrier acknowledges that it received the hearing officer’s decision on June 2, 2005, which is also the deemed receipt date. The 15th day after the carrier’s date of receipt, excluding Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code, was Thursday June 23, 2005, a due date which the carrier also acknowledges in its appeal.
The carrier’s appeal was filed with the Commission by fax on July 13, 2005. The appeal is dated June 20, 2005, and states that it was sent to the respondent 1 (claimant/beneficiary) and the Commission by Certified Mail Return Receipt Requested on June 20, 2005. The claimant/beneficiary, in a response stated that she received the carrier’s Request for Review on June 21, 2005. No documentation or return receipt that the carrier’s appeal was received by the Commission prior to July 13, 2005, has been provided.
Since the carrier’s appeal was filed with the Commission after June 23, 2005, it was not timely filed. Section 410.169 provides in pertinent part that a decision of a hearing officer regarding benefits is final in the absence of a timely appeal by a party.
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 NATIONAL FIRE INSURANCE COMPANY OF HARTFORD and the name and address of its registered agent for service of process is
CT CORPORATION
350 NORTH ST. PAUL STREET
DALLAS, TEXAS 75201.
Thomas A. Knapp
CONCUR:
Robert W. Potts – Appeals Judge
Margaret L. Turner – Appeals Judge