Section 410.202(a) provides that to appeal the decision of a hearing officer, a party shall file a written request for appeal with the Appeals Panel not later than the 15th day after the date on which the decision of the hearing officer is received from the division and shall on the same date serve a copy of the request for appeal on the other party. Section 410.202 was amended effective June 17, 2001, to exclude Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code from the computation of time in which to file an appeal or a response. Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 102.5(d) (Rule 102.5(d)) effective May 1, 2005, provides as follows:
(d)For purpose of determining the date of receipt for those written communications sent by the [Texas Workers’ Compensation Commission (Commission)] which require the recipient to perform an action by a specific date after receipt, unless the great weight of evidence indicates otherwise, the Commission shall deem the received date to be the earliest of: five days after the date mailed via United States Postal Service regular mail; the first working day after the date the written communication was placed in a carrier’s (City) representative box; or the date faxed or electronically transmitted.
Rule 143.3(d) effective May 9, 2004, provides as follows:
(d)The commission shall deem that the parties received the hearing officer’s decision:
(1)five days after the date the commission’s letter was mailed to the parties, unless the great weight of evidence indicates otherwise;
(2)the first working day after the date the written communication was placed in a carrier’s (City) representative box located at the commission’s main office in (City) unless the great weight of evidence indicates otherwise;
(3)the working day that it was faxed by the commission, if faxed during normal business hours as defined in § 102.3(c); otherwise, the next working day after the date faxed; or
(4)the working day that it was electronically transmitted by the commission, if transmitted during normal business hours as defined in § 102.3(c); otherwise, the next working day after the date electronically transmitted.
Rule 143.3(e) provides that a request for review shall be presumed to be timely filed if it is: (1) mailed on or before the 15th day after the date of receipt of the hearing officer’s decision; and (2) received by the Commission not later than the 20th day after the date of receipt of the hearing officer’s decision. The Appeals Panel has held that both portions of Rule 143.3(e) must be complied with for an appeal to be timely. Texas Workers’ Compensation Commission Appeal No. 041319, decided July 27, 2004.
Commission records reflect that the hearing officer’s decision was mailed to the claimant on May 12, 2005. The claimant states in his appeal that he received the hearing officer’s decision May 17, 2005. Similarly using the five-day deemed receipt provisions of Rules 102.5(d) and 143.3(d)(1), the deemed date of receipt of the hearing officer’s decision would be Tuesday, May 17, 2005. The 15th day after May 17, 2005, excluding Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code, was June 8, 2005, and the 20th day was Monday, June 15, 2005. The claimant, apparently, initially sent his appeal in an envelope postmarked June 7, 2005, however, that envelope was returned to the claimant for insufficient postage. The claimant’s Request for Review was subsequently resubmitted in an envelope postmarked June 21, 2005, and received June 27, 2005, together with an explanatory letter regarding the fact that “the post office did not include the correct amount of postage” for the original Request for Review.
The claimant’s appeal (Request for Review) is untimely. The envelope in which the appeal was resubmitted indicates that it was remailed to the Commission on June 21, 2005, and was received by the Commission on June 27, 2005. The Appeals Panel has held that 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 was timely mailed. Texas Workers’ Compensation Commission Appeal No. 010216, decided March 5, 2001; Texas Workers’ Compensation Commission Appeal No. 033229, decided January 13, 2004. The claimant’s appeal is untimely because it was remailed to the Commission after June 8, 2005, and was not received by the Commission until June 27, 2005.
Having determined that the hearing officer’s decision and order have become final under Section 410.169 because a timely appeal was not filed with the Commission, the Appeals Panel does not have jurisdiction to review the hearing officer’s decision.
The true corporate name of the insurance carrier is TEXAS MUTUAL INSURANCE COMPANY and the name and address of its registered agent for service of process is
RUSSELL OLIVER, PRESIDENT
221 WEST 6TH STREET, SUITE 300
AUSTIN, TEXAS 78701.
Thomas A. Knapp
CONCUR:
Robert W. Potts – Appeals Judge
Margaret L. Turner – Appeals Judge