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(d) provides that Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code are not included in the computation of time in which a request for an appeal or a response must be filed. 28 TEX. ADMIN. CODE § 143.3(e) (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) 041319, decided July 27, 2004.
Rule 102.5(d) provides 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 evidence indicates otherwise, the Division shall deem the received date to be the earliest of: five days after the date mailed via Untied States Postal Service regular mail; the first working day after the date the written communication was placed in the carrier’s _____ representative’s box; or the date faxed or electronically transmitted. Rule 143.3(d)(2) also provides for a deemed date of receipt of the hearing officer’s decision the first working day after the date the written communication was placed in a carrier’s _____ representative’s box, unless the great weight of evidence indicates otherwise.
A date stamp reflects that the hearing officer’s decision was placed in the carrier’s _____ representative’s box on September 7, 2005. The carrier’s _____ representative provided a signed acknowledgment of receipt on September 8, 2005. The carrier states that it received the hearing officer’s decision on September 13, 2005. The mere assertion that the hearing officer’s 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 Division rule. APD 041319, supra. Pursuant to Rules 102.5(d) and 143.3(d)(2), Thursday, September 8, 2005, is the deemed date of receipt because that was the first working day after the date the hearing officer’s decision was placed in the carrier’s _____ representative’s box. The 15th day after the deemed date of receipt of September 8, 2005, excluding Saturdays and Sundays and holidays listed in Texas Government Code Section 662.003 was Thursday, September 29, 2005. The carrier’s appeal was faxed to the Division on October 5, 2005, and was mailed to the Division on October 6, 2005. Because the carrier’s appeal was neither mailed nor filed on or before September 29, 2005, it was not timely filed with the Division.
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.
Robert W. Potts
CONCUR:
Thomas A. Knapp – Appeals Judge
Margaret L. Turner – Appeals Judge