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 August 18, 2003. The hearing officer determined that the appellant (claimant) sustained a compensable right shoulder injury on _____________, and had disability on February 28, 2003, and for no other time period. The claimant appeals the disability determination on sufficiency of the evidence grounds, asserting that he had disability beyond one day. The respondent (carrier) asserts that the claimant’s appeal is untimely and, in the alternative, urges affirmance. The hearing officer’s injury determination was not appealed and has become final. Section 410.169.
DECISION
Affirmed as modified.
We first address the carrier’s assertion that the claimant’s appeal is untimely. A written request for appeal must be filed within 15 days of the date of receipt of the hearing officer’s decision, excluding Saturdays, Sundays, and holidays listed in Section 662.003 of the Texas Government Code. Section 410.202(a) and (d). Texas Workers’ Compensation Commission (Commission) records indicate that the hearing officer’s decision was mailed to the claimant on August 22, 2003. The claimant was deemed to have received the decision on August 27, 2003, pursuant to Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 102.5(d) (Rule 102.5(d)). Because September 1, 2003, was a holiday, the last date for the claimant to timely file an appeal was September 18, 2003. A copy of the claimant’s appeal was faxed to the Commission on September 18, 2003, and was stamped as received by the Commission’s Chief Clerk of Proceedings on that date. The appeal is, therefore, timely.
The claimant attached new evidence to his appeal which would purportedly show that he had disability beyond the date found by the hearing officer. Documents submitted for the first time on appeal are generally not considered unless they constitute newly discovered evidence. In determining whether a document constitutes newly discovered evidence, the Appeals Panel considers whether the evidence came to the knowledge of the party after the hearing, whether it is cumulative of other evidence of record, whether it was not offered at the hearing due to a lack of diligence, and whether it is so material that it would probably result in a different decision. See generally Texas Workers’ Compensation Commission Appeal No. 93111, decided March 29, 1993; Black v. Wills, 758 S.W.2d 809 (Tex. App.-Dallas 1988, no writ). Upon our review, we cannot agree that the evidence meets the requirements of newly discovered evidence, because the claimant did not show that the additional documentation could not have been obtained prior to the hearing. The evidence, therefore, does not meet the requirements for newly discovered evidence and will not be considered for the first time on appeal.
The hearing officer did not err in making the complained-of disability determination. The burden of proof is on the claimant to show that he had disability for the asserted period. It was for the hearing officer, as the trier of fact, to resolve the conflicts and inconsistencies in the evidence and to determine what facts had been established. Garza v. Commercial Insurance Company of Newark, New Jersey, 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ). The hearing officer considered the evidence and determined that the claimant did not meet his burden to show that he had disability beyond February 28, 2003. In view of the evidence presented, we cannot conclude that the hearing officer’s determination is so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).
Notwithstanding the above, the claimant requests reversal of the hearing officer’s decision for the development and presentation of additional evidence on his behalf. We observe that the claimant was given ample opportunity to meet his burden of proof on the disputed issue. Accordingly, we decline to reverse the hearing officer’s decision.
Although not raised by the parties, we modify Finding of Fact No. 7 and Conclusion of Law No. 4 to provide that the claimant had disability “on February 28, 2003, and for no other time period as of the date of the hearing.” See Texas Workers’ Compensation Commission Appeal No. 931049, decided December 30, 1993; and Texas Workers’ Compensation Commission Appeal No. 971871, decided October 29, 1997.
The decision and order of the hearing officer are affirmed as modified.
The true corporate name of the insurance carrier is LUMBERMENS MUTUAL CASUALTY COMPANY and the name and address of its registered agent for service of process is
CORPORATION SERVICE COMPANY
800 BRAZOS
AUSTIN, TEXAS 78701.
Edward Vilano – Appeals Judge
CONCUR:
Gary L. Kilgore – Appeals Judge
Thomas A. Knapp – Appeals Judge