A contested case hearing was held in (city), Texas, on June 23, 1993, with (hearing officer) presiding as hearing officer. He concluded that claimant had not sustained a compensable injury because he was injured after he had been terminated, finding that claimant was injured in an attempt to unlawfully injure his immediate supervisor in retaliation for having been terminated. The hearing officer also noted that claimant had no disability, although he opined that the issue was moot due to his findings on the issue of injury.
The appellant, claimant herein, appeals the determination of the hearing officer, contending that his supervisor started the fight and he had not been fired at the time of injury. The carrier responds that the hearing decision is supported by the evidence. The carrier further argues that the appeal was not timely filed within 15 days as required by the Texas Workers Compensation Act, TEX. LAB. CODE ANN. §410.202(a) (formerly Art. 8308-6.41(a)) (1989 Act).
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 §§ 410.169 and 410.202(a) (formerly Articles 8308-6.34(h) and 8308-6.41(a)) and Tex. W. C. Comm’n Rules, 28 TEX. ADMIN. CODE § 143.3(a)(3) (Rule 143.3(a)(3)).
Section 410.202(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 July 7, 1993, was distributed by the Commission’s hearing’s division on July 8, 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 the date mailed.” Accordingly, claimant is deemed to have received the decision on July 13, 1993, and his appeal was required to be filed with the Appeals Panel not later than 15 days later, that is, on July 28, 1993.
The claimant’s request for review was postmarked July 30, 1993, and received by the Commission on August 2, 1993.
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 his appeal. 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.
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.
Susan M. Kelley – Appeals Judge
CONCUR:
Stark O. Sanders, Jr. – Chief Appeals Judge
Joe Sebesta – Appeals Judge