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 Texas Department of Insurance Division of Workers’ Compensation (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. 28 TEX. ADMIN. CODE § 102.5(d) (Rule 102.5(d)) provides in pertinent part that for purposes of determining the date of receipt for those written communications sent by the Division which require the recipient to perform an action by a specific date after receipt, unless the great weight of the evidence indicates otherwise, the Division shall deem the received date to be five days after the date mailed. See also Rule 143.3(d)(1) which provides that the hearing officer’s decision is deemed received five days after mailing, unless the great weight of the evidence indicates otherwise. 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 Division not later than the 20th day after the date of receipt of the hearing officer’s decision. Both portions of Rule 143.3(e) must be complied with for an appeal to be timely. Appeals Panel Decision (APD) 042688, decided December 1, 2004.
Records of the Division reflect that the hearing officer’s decision was mailed to the claimant on July 14, 2005. The cover letter of the hearing officer’s decision contains the same address for the claimant as is shown as the claimant’s return address on the envelope in which he mailed his appeal to the Division. Pursuant to Rules 102.5(d) and 143.3(d)(1), the claimant is deemed to have received the hearing officer’s decision on Tuesday, July 19, 2005, unless the great weight of the evidence indicates otherwise. Although the claimant states in his appeal that he received the hearing officer’s decision July 26, 2005, the Appeals Panel has held that when Division records show mailing to the claimant on a particular day at the correct address, the mere assertion that the decision was received after the deemed date of receipt is not sufficient to extend the date of receipt past the deemed date of receipt provided by the Division rule. APD 042688, supra. The 15th day after the claimant’s deemed date of receipt, excluding Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code, was Tuesday, August 9, 2005, and the 20th day was August 16, 2005. The envelope in which the claimant mailed his appeal to the Division is postmarked August 16, 2005, and the Division received the appeal on August 18, 2005. Since the claimant’s appeal was mailed to the Division after August 9, 2005, it was not timely filed with the Division. Section 410.169 provides in pertinent part that a decision of a hearing officer regarding benefits is final in the absence of a timely appeal by a party.
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 Division the Appeals Panel does not have jurisdiction to review the hearing officer’s decision.
Thomas A. Knapp
CONCUR:
Robert W. Potts – Appeals Judge
Margaret L. Turner – Appeals Judge