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 Texas Department of Insurance, Division of Workers’ Compensation (Division) and shall on the same date serve a copy of the request for appeal on the other party. Section 410.202(d) provides that Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code are not included in the computation of time in which a request for an appeal or a response must be filed. 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 Division 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. Appeals Panel Decision (APD) 041319, decided July 27, 2004.
Records of the Division reflect that the hearing officer’s decision was mailed to the claimant on September 21, 2005. Pursuant to Rules 102.5(d) and 143.3(d)(1), unless the great weight of the evidence indicates otherwise, the claimant is deemed to have received the hearing officer’s decision five days later, or on Monday, September 26, 2005. Excluding Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code, the 15th day after the deemed date of receipt of September 26, 2005, was Thursday October 20, 2005, and the 20th day after the deemed date of receipt was Thursday October 27, 2005. The envelope in which the appeal was mailed to the Division is postmarked October 14, 2005, but the mailed appeal was not stamped received by the Division until November 1, 2005. Although the postmark date indicates that the appeal was timely mailed by regular US Postal Service mail it inexplicably was not received by the Division until November 1, 2005, more than the 20 days allowed by Rule 143.3(e). Because the claimant’s appeal was not received on or before October 27, 2005, pursuant to Rule 143.3(e) it was not timely filed with the Division.
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 Division, 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