This case returns to us following a hearing on remand held in (city), Texas, on May 10, 1993, with (hearing officer) presiding as hearing officer. In his earlier decision, which we considered in Texas Workers’ Compensation Commission Appeal No. 93123, decided April 5, 1993, the hearing officer determined that the appellant’s (claimant) impairment rating was 13 percent based on the report of the respondent’s (carrier) doctor because the great weight of the other medical evidence was contrary to the report of the designated doctor who had found the rating to be four percent. We reversed and remanded for the development of further evidence and consideration pointing out that the hearing officer’s decision failed to set forth and show how the great weight of the other medical evidence was contrary to the designated doctor’s report. Following the hearing on remand, the hearing officer issued a new decision concluding that claimant’s impairment rating was four percent as reported by the designated doctor. Claimant, in his untimely appeal, takes issue with the hearing officer’s decision.
DECISION
Finding that claimant’s request for review appeal was not timely filed, our jurisdiction is not invoked and the decision of the hearing officer is affirmed by operation of law.
Our reasoning in this case is the same as was discussed in Texas Workers’ Compensation Commission Appeal No. 92080, decided April 14, 1992. The Texas Workers’ Compensation Act, TEX. REV. CIV. STAT. ANN. art. 8308-6.41(a) (Vernon Supp. 1993) (1989 Act) provides, in part, that a party desiring to appeal the decision of the hearing officer shall file a written appeal with the Appeals Panel not later than the 15th day after the date the hearing officer’s decision is received from the Texas Workers’ Compensation Commission’s (Commission) hearings division. Tex, W.C. Comm’n, 28 TEX. ADMIN. CODE § 143.3(a)(3) provides that a request for review be filed with the Commission’s central office in Austin not later than the 15th day after receipt of the hearing officer’s decision. Rule 143.3((c) provides that a request shall be presumed to be timely filed if it is mailed on or before the 15th day after the date of receipt of the hearing officer’s decision, and is received by the Commission not later than the 20th day after such date. The hearing officer’s decision in this case, signed on May 12, 1993, was distributed by the Commission’s hearings division on May 18, 1993. Claimant does not indicate the date he received the decision and thus we apply Rule 102.5(h) which provides, in part, that “the commission shall deem the received date to be five days after date mailed.” Accordingly, claimant is deemed to have received the decision on May 23, 1993, and his appeal was required to be filed with the Appeals Panel not later than 15 days later, that is, on June 7, 1993. Claimant’s request for review bore the postmark June 9, 1993, and was received by the Commission on June 14, 1993. Since claimant’s request for review was not mailed until June 9th, his appeal was not timely and, consequently, the jurisdiction of the Appeals Panel was not properly invoked. Pursuant to Article 8308-6.34(h) and Rule 142.16(d), the decision of the hearing officer has become final.
Notwithstanding that we do not decide this appeal, we carefully scrutinized the medical evidence which was detailed in our earlier decision in this case (Appeal No. 93123, supra). Even were we to have considered claimant’s appeal, we would not have found that the great weight of the other medical evidence was contrary to the designated doctor’s report which determined that claimant’s whole body impairment rating was four percent.
Since the claimant’s request for review was not mailed until June 9, 1993, his appeal was untimely and, consequently, the jurisdiction of the Appeals Panel was not properly invoked. Pursuant to Article 8308-6.34(h) and Rule 142.6(f), the decision of the hearing officer has become final.
The decision of the hearing officer has become final by operation of law.
Philip F. O’Neill – Appeals Judge
CONCUR:
Stark O. Sanders, Jr. – Chief Appeals Judge
Susan M. Kelley – Appeals Judge