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)) 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 to be five days after the date mailed. See also Rule 143.3(d)(1) which provides that the hearing officer’s decision is deemed received five days after mailing, 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. Texas Workers’ Compensation Commission Appeal No. 042688, decided December 1, 2004.
Records of the Commission reflect that the hearing officer’s decision was mailed to the claimant on July 6, 2005. The cover letter to the hearing officer’s decision contains the same address for the claimant as is shown on the contested case hearing sign-in sheet. Pursuant to Rules 102.5(d) and 143.3(d)(1), the claimant is deemed to have received the hearing officer’s decision on Monday, July 11, 2005, unless the great weight of the evidence indicates otherwise. The 15th day after the claimant’s deemed date of receipt, excluding Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code, was Monday, August 1, 2005. On August 1, 2005, the respondent (carrier) filed a response to the claimant’s request for review. A search of Commission records indicates that there was no record of the claimant’s request for review having been filed with the Commission. On August 3, 2005, the carrier sent a copy of the claimant’s appeal to the Commission by facsimile transmission. A review of that document indicates that while the appeal heading had the address of the Commission the certificate of service portion only showed a copy of the “request for appeal” to be sent to the carrier and the carrier’s attorney by certified mail.
Since the claimant’s appeal was neither mailed nor filed with the Commission on or before August 1, 2005, the appeal is untimely. Section 410.169 provides in pertinent part that a decision of a hearing officer 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.
Thomas A. Knapp
CONCUR:
Robert W. Potts – Appeals Judge
Margaret L. Turner – Appeals Judge