The appellant/cross-respondent’s (claimant) appeal was timely and considered. The respondent/cross-appellant’s (carrier) “response” was timely filed and considered as a response but was not timely filed and was not considered as a cross-appeal. The carrier’s document, although labeled as a “Response to Claimant’s Request for Review” actually contends that the claimant had no disability and requests that the “Appeals Panel reverse the Decision and Order of the Hearing Officer and render [a] decision to the effect that Claimant had no disability.” Only in the alternative does the carrier request affirmance of the hearing officer’s decision “in all respects.” We consider this to be a cross-appeal as to the determination on disability.
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. 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 Department of Insurance, Division of Workers’ Compensation (Division) 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. Appeals Panel Decision (APD) 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 [Division] which require the recipient to perform an action by a specific date after receipt, unless the great weight of evidence indicates otherwise, the [Division] shall deem the received date to be 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 _____ 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 _____ representative’s box, unless the great weight of evidence indicates otherwise.
The carrier states in its “Response” cross-appeal only that it received the claimant’s Request for Review “on August 22, 2005, making Carrier’s response timely.” We agree insofar as the document is a response. As to the allegation that the claimant had no disability the cross-appeal is untimely. A Division 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 the carrier’s _____ representative’s box on July 27, 2005. Another date stamp reflects that the carrier’s _____ representative received the hearing officer’s decision on July 28, 2005. The first working day after July 27, 2005, which was the day the hearing officer’s decision was placed in the carrier’s _____ representative’s box, was Thursday July 28, 2005, and thus July 28, 2005, was the deemed date of receipt under Rules 102.5(d) and 143.3(d)(2). The 15th day after the carrier’s deemed date of receipt of July 28, 2005, excluding Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code, was Thursday August 18, 2005. The carrier’s cross-appeal was mailed to the Division on September 12, 2005, with a copy being sent by facsimile transmission the same date. Because the carrier’s cross-appeal alleging no disability was neither mailed nor filed on or before August 18, 2005, the cross-appeal is untimely.
A written decision by the Appeals Panel on the claimant’s timely appeal was not issued by the 30th day after the response was filed with the Division. The hearing officer’s decision has therefore become final regarding the claimant’s timely appeal pursuant to Section 410.204(c) and Rule 143.5(b). The Appeals Panel does not have jurisdiction to review the hearing officer’s decision of the carrier’s cross-appeal regarding disability because a timely cross-appeal was not filed with the Division by the carrier. Therefore, the hearing officer’s decision and order regarding the carrier’s cross-appeal has become final under Section 410.169.
The true corporate name of the insurance carrier is LIBERTY MUTUAL FIRE INSURANCE COMPANY and the name and address of its registered agent for service of process is
CT CORPORATION SYSTEMS
350 NORTH ST. PAUL, SUITE 2900
DALLAS, TEXAS 75201.
Thomas A. Knapp
CONCUR:
Robert W. Potts – Appeals Judge
Margaret L. Turner – Appeals Judge