Pursuant to the Texas Workers’ Compensation Act, TEX. REV. CIV. STAT. ANN. art. 8308-1.01 et seq. (Vernon Supp. 1993) (1989 Act), a contested case hearing was held in (city), Texas, on April 23, 1993, (hearing officer) presiding as hearing officer. He concluded that appellant (claimant) did not sustain an injury in the course and scope of his employment on (date of injury), and that he therefore did not have disability due to such injury. In addition, the hearing officer found that the claimant failed to give notice of his alleged injury in a timely manner. The claimant appeals these determinations. No reply has been received from the respondent (City).
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 Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 143.3 (Rule 143.3).
Article 8308-6.41(a) provides that a party desiring to appeal the decision of the hearing officer must file its appeal with the Texas Workers’ Compensation Commission (Commission) and serve a copy on the other party no later than the 15th day after receiving the hearing officer’s decision from the Commission’s hearings division. Rule 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 for review 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 signed the decision on May 5, 1993. Commission records disclose that the decision was mailed to the parties May 13, 1993.
A copy of the claimant’s handwritten request for review bears a date of May 24, 1993. It does not indicate when he received the hearing officer’s decision or otherwise address the timeliness issue. Thus, pursuant to Rule 102.5(h), receipt is deemed to have been on May 18, 1993, five days after mailing. Applying the five day rule to the date of mailing plus the 15 days for filing an appeal, we conclude that the filing deadline and last day to invoke the jurisdiction of the Appeals Panel was June 2, 1993. Had the claimant mailed his request no later than June 2, 1993, and had it been received at the Commission offices in Austin within five days of mailing, the appeal would have been timely.
We have no evidence of the original request for review ever have been received by the Commission. On June 30, 1993, the claimant, without explanation, mailed to the Commission an apparent photocopy of an original appeal dated May 24, 1993. Included on the photocopy were copies of two certified mail receipts indicating certified mailings, but without indication of the addressees and that return receipts were requested. This photocopy was received by the Commission’s Austin central office on July 2, 1993, and although it may have been claimant’s second attempt to file his appeal, it was the first request for review received by the Commission.
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 matters submitted for appeal. See Texas Workers’ Compensation Commission Appeal No. 92080, April 14, 1992. The claimant has the burden of establishing that an injury occurred. This is ordinarily a question of fact to be determined by the hearing officer based on his evaluation of the evidence. See Texas Workers’ Compensation Commission Appeal No. 93449, decided July 21, 1993. The hearing officer is the sole judge of the weight and credibility of the evidence (Article 8308-6.34(e)) and is entitled to believe all or part or none of the testimony of any one witness. Texas Workers’ Compensation Commission Appeal No. 93426, decided July 7, 1993. The hearing officer resolved the issue of the existence of a compensable injury against the claimant. The record shows inconsistencies in the testimony of key witnesses and raised doubts about whether he reported the cause of his injury to his supervisor and about how he reported the cause and history of injury to treating physicians. There was sufficient evidence on which the hearing officer could base his findings. See Texas Workers’ Compensation Commission Appeal No. 92106, decided April 27, 1992. Under these circumstances, even were we to have considered claimant’s appeal, we would have concluded that his findings are not so against the great weight of the evidence as to be clearly wrong and manifestly unjust. See Texas Workers’ Compensation Commission Appeal No. 93440, decided July 15, 1993.
Since the claimant’s request for review was not received until July 2, 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 142.16(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
Gary L. Kilgore – Appeals Judge