Pursuant to the Texas Workers’ Compensation Act, TEX. REV. CIV. STAT. ANN. art. 8308-1.02 et seq. (Vernon Supp. 1993) (1989 Act), a contested case hearing was held in (city), Texas, on January 13, 1993, (hearing officer) presiding as hearing officer. He concluded that claimant reached maximum medical improvement on August 1,1992, with an 11% impairment rating based on the report of the designated doctor. The appellant, claimant herein, appeals the conclusion of law regarding the impairment rating. The request for review has not been served on the respondent, carrier herein, as required by Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 143.3 (Rule 143.3).
DECISION
Finding that the request for review was not timely filed and the jurisdiction of the Appeals Panel has not been properly invoked, the decision of the hearing officer has become final pursuant to the provision of Articles 8308-6.34(h) and 8308-6.41(a) and Rule 143.3(a)(3).
Article 8308-6.41(a) provides, in part, that a party desiring to appeal the decision of the hearing officer shall file a written appeal with the Appeals Panel and serve a copy on the other party 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. Rule 143.3(a) 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 January 20, 1993, was distributed by the Commission’s hearing’s division on January 28, 1993. Claimant does not indicate the date she 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 the date mailed.” Accordingly, claimant is deemed to have received the decision on February 2, 1993, and her appeal was required to be filed with the Appeals Panel not later than 15 days later, that is, on February 17, 1993.
The claimant’s handwritten and undated request for review was received by the Commission on June 30, 1993. It does not indicate when the hearing officer’s decision was received. And, despite the clear statement in the transcript of the hearing at page 57 that the hearing officer expressly told the parties “. . . you must file your appeal with the commission’s appeal panel no later than the 15th day from the date you receive the decision,” the claimant asserts that she just recently found out what the time limits for an appeal were and asks, nonetheless, for an “opportunity to make an appeal.” An accompanying document from the claimant’s treating chiropractor also contends that no one told them about appeal deadlines. An earlier letter from the claimant received by the Commission on March 22, 1993, attempts to dispute the impairment rating found by the designated doctor. Although it is not clear whether this letter is intended as an appeal or is just a continuation of the dispute over the proper impairment rating, it, too, is untimely for appeal purposes.
The cover letter that forwarded the decision in this case to the parties clearly shows the claimant as an addressee with the same address reflected in her most recent correspondence to the Commission. Absent some evidence of fault or irregularity in the distribution of the contested case hearing decision, we are unwilling to conclude that the claimant did not receive this decision within five days of mailing. See Rule 102.5(h) and Texas Workers’ Compensation Commission Appeal No. 93327, decided June 3, 1993 and decisions cited therein.
Failure to serve the opposing party does not render an otherwise timely appeal untimely. Texas Workers’ Compensation Commission Appeal No. 92397, September 21, 1992. Since the claimant failed to request review in a timely manner, her additional failure to serve the opposing party has no effect on appeals panel jurisdiction in this case.
Although not necessary to our decision, we have nonetheless examined the record in this case to determine whether there was sufficient evidence to support the hearing officer’s determinations on the matter submitted for appeal. See Texas Workers’ Compensation Commission Appeal No. 92080, April 14, 1992. The opinion of a designated doctor on the question of an impairment rating is given presumptive weight unless refuted by the great weight of the other medical evidence to the contrary. Articles 8308-4.25(b)and 8308-4.26(g); Texas Workers’ Compensation Commission Appeal No. 93859, decided July 2, 1993, and Texas Workers’ Compensation Commission Appeal No. 92517, decided November 12, 1992. The hearing officer, as the sole judge of the weight and credibility to be given to the evidence, determines whether there exists sufficient evidence to rebut this presumption. The record of the contested case hearing discloses that the issue of impairment rating was fully presented. The designated doctor’s findings (TWCC-69, with attachments) confirms that he did a more than cursory examination of the claimant. Thus, it appears there was sufficient evidence on which the hearing officer could make his findings. Under these circumstances, were our jurisdiction invoked, we would have concluded that his findings are not so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. In re King’s Estate, 244 S.W.2d 660(Tex. 1951); Texas Workers’ Compensation Commission Appeal No. 93360, decided June 23, 1993.
The request for review having been determined to be untimely, the jurisdiction of the Appeals Panel has not been properly invoked. See Texas Workers’ Compensation Commission Appeal No. 92099, decided May 21, 1992. Accordingly, the decision of the hearing officer is the final administrative decision in this case.
Thomas A. Knapp – Appeals Judge
CONCUR:
Robert W. Potts – Appeals Judge
Philip F. O’Neill – Appeals Judge