On September 7, 1994, the Appeals Panel issued Texas Workers’ Compensation Commission Appeal No. 941001 (unpublished), which affirmed the hearing officer’s decision that the claimant’s impairment rating (IR) was 12% as determined by the designated doctor selected by the Texas Workers’ Compensation Commission (Commission). On October 24, 1995, the claimant prepared a document entitled “Defendant’s First Motion for Continuance on Appeal” in which he stated that he had new medical evidence, in the form of a 20% IR from a new doctor, which he wished to have considered by the designated doctor and the hearing officer below. He also states that he received ineffective assistance at the hearing, for which he seeks damages and other relief, and indicates that he wishes to file a petition in a court of law. A copy of a certified mail “green card” indicates that this document was received by the Commission on February 29, 1996, although it was not transmitted to the Appeals Panel until June 26, 1996.
Despite the style of the document, we understand it to be a motion for rehearing based on new evidence. However, the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act) provides that the decision of the Appeals Panel is final in the absence of a timely appeal for judicial review, and that to seek judicial review, a party must file suit not later than the 40th day after the date on which the decision of the Appeals Panel was filed with the Commission’s Division of Hearings. Sections 410.204; 410.252. The Appeals Panel has thus lost jurisdiction over the instant case. We additionally note that even if a motion for rehearing had been filed, prior to the expiration of our jurisdiction, the claimant would have to establish, at a minimum, that the new evidence could not have been obtained by use of due diligence and would be likely to produce a different result. Texas Workers’ Compensation Commission Appeal No. 92255, decided July 27, 1992. Any alleged errors concerning the contested case hearing (including allegedly inadequate assistance) should have been raised in a timely appeal; even if this had been done, a hearing officer lacks the authority to award damages.
Based on the foregoing, the original decision in Appeal No. 941001 will not be reconsidered.
Lynda H. Nesenholtz – Appeals Judge
CONCUR:
Stark O. Sanders, Jr. – Chief Appeals Judge
Joe Sebesta – Appeals Judge