This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on May 10, 2004. The hearing officer resolved the disputed issues by deciding that the appellant (claimant) sustained an injury in the course and scope of his employment but failed, without good cause, to timely report the injury to the employer; and that the claimant had no disability. The claimant appealed, disputing the timely notice determination. The respondent (carrier) responded, asserting that the claimant’s appeal is untimely and alternatively urges affirmance.
DECISION
Affirmed.
Since it is jurisdictional, we first address the question of the timeliness of the claimant’s appeal. 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 May 14, 2004. Under Rule 102.5(d), unless the great weight of the evidence indicates otherwise, the claimant is deemed to have received the hearing officer’s decision five days after it was mailed; in this case deemed receipt is May 19, 2004. The appeal needed to be mailed no later than June 10, 2004, the 15th day from the date of receipt. The U.S. Postal Service date stamp on the envelope transmitting the claimant’s appeal is June 10, 2004, and it is stamped as received by the Commission’s Chief Clerk of Proceedings on June 14, 2004. Thus, the appeal is timely.
The claimant attached documents to his appeal, some of which were not admitted into evidence at the hearing. Documents submitted for the first time on appeal are generally not considered unless they constitute newly discovered evidence. 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). In determining whether new evidence submitted with an appeal requires remand for further consideration, 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 Texas Workers’ Compensation Commission Appeal No. 93536, decided August 12, 1993. Upon our review, we cannot agree that the evidence meets the requirements of newly discovered evidence, in that the claimant did not show that the new evidence submitted for the first time on appeal could not have been obtained prior to the hearing or that its inclusion in the record would probably result in a different decision. The evidence, therefore, does not meet the standard for newly discovered evidence and will not be considered.
The claimant had the burden to prove that he gave timely notice of injury to his employer pursuant to Section 409.001. Conflicting evidence was presented on the disputed issues at the CCH. The hearing officer is the sole judge of the weight and credibility of the evidence. Section 410.165(a). As the finder of fact, the hearing officer resolves the conflicts in the evidence and determines what facts have been established. Although there is conflicting evidence in this case, we conclude that the hearing officer’s determinations that the claimant failed to timely notify his employer and provided no good cause for his failure to report his injury timely are supported by sufficient evidence and are not so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175 (Tex. 1986).
We affirm the decision and order of the hearing officer.
The true corporate name of the insurance carrier is ST. PAUL MERCURY INSURANCE COMPANY and the name and address of its registered agent for service of process is
CORPORATION SERVICE COMPANY
701 BRAZOS STREET, SUITE 1050
AUSTIN, TEXAS 78701.
Margaret L. Turner
CONCUR:
Elaine M. Chaney – Appeals Judge
Veronica L. Ruberto – Appeals Judge