This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on October 12, 2000. With respect to the single issue before her, the hearing officer determined that the respondent (claimant) is entitled to supplemental income benefits for the third quarter. The appellant (carrier) appealed, contending that the claimant did not make a good faith effort to seek employment and that her inability to earn at least 80% of her preinjury wage is not a direct result of her impairment from the compensable injury. The claimant responds that the hearing officer’s determinations were within her discretion and should be affirmed.
DECISION
A timely appeal not having been filed, the decision and order of the hearing officer have become final pursuant to Section 410.169.
Records of the Texas Workers’ Compensation Commission (Commission) show that the decision of the hearing officer was signed for by the carrier’s Austin representative on October 26, 2000. Under Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 156.1(a) (Rule 156.1(a)), each carrier shall designate an Austin representative to act as agent for receiving notice from the Commission and, under Rule 156.1(c), notice to the carrier’s Austin representative is notice from the Commission to the carrier. Therefore, the carrier received the decision of the hearing officer on October 26, 2000, when its Austin representative received it.
Pursuant to Section 410.202, an appeal, to be timely, must be filed or mailed not later than the 15th day after the date of receipt of the hearing officer’s decision. Rule 143.3(c) provides that an appeal is presumed to have been timely filed if it is mailed not later than the 15th day after the date of receipt of the hearing officer’s decision and received by the Commission not later than the 20th day after receipt of the hearing officer’s decision. Both portions of Rule 143.3(c) must be complied with in order for an appeal to be timely. Texas Workers’ Compensation Commission Appeal No. 94065, decided March 1, 1994; Texas Workers’ Compensation Commission Appeal No. 94111, decided March 10, 1994; Texas Workers’ Compensation Commission Appeal No. 941225, decided October 24, 1994. The last day for the carrier to timely file an appeal would have been Friday, November 10, 2000, and the last day for the appeal to have been timely received by the Commission was Wednesday, November 15, 2000. The carrier’s certificate of service recites service on the claimant’s attorney on November 6, 2000; the cover letter with the carrier’s appeal is dated November 6, 2000; and the envelope which contained the appeal bears a postage meter date of November 6, 2000. However, that envelope also bears another postage meter date of November 13, 2000, and is stamped to show that it was returned for additional postage. When a party’s appeal is returned for insufficient postage and is remailed to the Commission, the Appeals Panel uses the postmark on the remailing to determine if the appeal is timely. Texas Workers’ Compensation Commission Appeal No. 002556, decided November 27, 2000; Texas Workers’ Compensation Commission Order No. 97038, issued October 21, 1997. The carrier’s appeal was remailed on November 13, 2000, and was received by the Commission on November 16, 2000. Thus, it is untimely having been remailed to the Commission after the 15-day deadline set by Rule 143.3(c) and having been received by the Commission after the 20-day deadline set by that rule.
The carrier’s appeal being untimely, the decision of the hearing officer has become final. Section 410.169.
Elaine M. Chaney – Appeals Judge
CONCUR:
Robert W. Potts – Appeals Judge
Judy L. Stephens – Appeals Judge