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 January 12, 2001. The hearing officer held that the appellant (claimant) did not sustain a repetitive trauma injury or have disability. The claimant appeals and the respondent (carrier) responds that the appeal is untimely.
DECISION
The appeal was not timely filed, and the decision of the hearing officer has therefore become final.
An appeal must be filed not later than 15 days after the party receives the decision from the Hearings Division of the Texas Workers’ Compensation Commission (Commission). Section 410.202(a). The decision and order in this case was mailed by the Commission on January 25, 2001, to the address furnished by the claimant. There is a rule passed by the Commission to determine how the due date will be figured when communications are mailed from the Commission which require action by a certain date.
Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 102.5(d) (Rule 102.5(d)) provides that a communication mailed by the Commission is deemed to have been received on the fifth day after it is mailed, unless the great weight of evidence indicates otherwise. In this case, the decision and order of the hearing officer is deemed to have been received by January 30, 2001. The claimant contends that he received the decision on February 8, 2001. There is no explanation as to why it would take 13 days between the mailing date and the contended date of receipt. Consequently, the deeming rule applies.
The appeal was required to be filed not later than February 14, 2001, and received by the Commission on February 20, 2001 (as the 19th was a federal holiday). Rule 143.3(a)(3). The claimant mailed the appeal on February 22, 2001. The appeal is therefore untimely and the decision of the hearing officer has become final.
Susan M. Kelley – Appeals Judge
CONCUR:
Judy L. S. Barnes – Appeals Judge
Philip F. O’Neill – Appeals Judge