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 that 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(d) provides that Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code are excluded from the computation of time in which a request for an appeal or a response must be filed. 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 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 _________ representative box; or the date faxed or electronically transmitted. Rule 143.3(d)(2) also provides for a deemed receipt on the first working day after the date the written communication was placed in a carrier’s _________ representatives box located at the Division’s main office in _________, unless the great weight of 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 placed in the carrier’s _________ representative’s box on August 30, 2005. The first working day after August 30, 2005, was Wednesday August 31, 2005. Pursuant to Rules 102.5(d) and 143.3(d)(2) the carrier is deemed to have received the hearing officer’s decision on Wednesday August 31, 2005, unless the great weight of evidence indicates otherwise. Although the carrier in its appeal states that it received the hearing officer’s decision on September 1, 2005, that assertion is not sufficient to extend the date of receipt provided by the Division rules. APD 042688, supra.
The 15th day after the carrier’s deemed date of receipt, excluding Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code was Thursday September 22, 2005. The carrier hand delivered its appeal to the Division’s Central office on September 23, 2005. It does not appear that a copy of the appeal was transmitted by any other means. Since the carrier’s appeal was filed after September 22, 2005, it was not timely filed. 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