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 28, 2003. The hearing officer decided that the appellant’s (claimant herein) compensable injury of _____________, did not include an injury to the claimant’s right shoulder. The claimant files a request for review asking us to reverse this decision. The respondent (carrier herein) replies that the claimant’s request for review is untimely.
DECISION
A timely appeal not having been filed, the decision and order of the hearing officer have become final pursuant to Section 410.169.
Pursuant to Section 410.202(a), a written request for appeal must be filed within 15 days of the date of receipt of the hearing officer’s decision. Section 410.202 was amended effective June 17, 2001, to exclude Saturdays, Sundays, and holidays listed in Section 662.003 of the Texas Government Code from the computation of time in which to file an appeal. Section 410.202(d). Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § Rule 143.3(c) (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 Texas Workers’ Compensation Commission (Commission) not later than the 20th day after the date of receipt of the hearing officer’s decision. Both portions of Rule 143.3(c) must be satisfied in order for an appeal to be timely. Texas Workers’ Compensation Commission Appeal No. 002806, decided January 17, 2001.
Commission records indicate that the hearing officer’s decision was mailed to the claimant on November 3, 2003. Under Rule 102.5(d), unless the great weight of evidence indicates otherwise, the claimant is deemed to have received the hearing officer’s decision five days after it was mailed; in this case the deemed date of receipt is November 8, 2003. The claimant states in his request for review that he actually received the decision of the hearing officer on December 15, 2003. However, the mere assertion that the decision was received after the deemed date of receipt does constitute the great weight and preponderance of the evidence sufficient to extend the date of receipt past the deemed date of receipt provided by Commission rule. Thus, the appeal needed to be mailed no later than December 3, 2003, the 15th day from the deemed date of receipt. The claimant’s appeal is postmarked as being mailed on January 7, 2004. Thus, the appeal is untimely.
The appeal being untimely, the jurisdiction of the Appeals Panel was not properly invoked and the decision is final pursuant to Section 410.169.
The true corporate name of the insurance carrier is AMERICAN PROTECTION INSURANCE COMPANY and the name and address of its registered agent for service of process is
CORPORATION SERVICE COMPANY
800 BRAZOS
AUSTIN, TEXAS 78701.
Gary L. Kilgore
CONCUR:
Judy L. S. Barnes – Appeals Judge
Thomas A. Knapp – Appeals Judge