Appeals Panel Holds that Weekend/Holiday Counting Rule Applies to 30-Day Notice

The Appeals Panel has reversed the decision and order of a benefit contested case Hearing Officer and rendered a decision that an injured worker timely reported her injury to the employer. In Appeals Panel Decision Number 160634, decided May 24, 2016, the Appeals Panel affirmed the Hearing Officer’s decision that the claimant had not sustained a compensable injury in the form of an occupational disease. However, the Appeals Panel reversed the Hearing Officer’s decision on the 30-day notice issue.

The Hearing Officer found that the claimant was diagnosed with C.diff or ulcerative colitis. The Hearing Officer further found that the claimant’s employer became aware of a claimed work-related injury on August 31, 2015, which was a Sunday.

Section 409.001(a) provides that, if the injury is an occupational disease, an employee or a person acting on the employee’s behalf shall notify the employer of the employee of an injury not later than the 30th day after the date on which the employee knew or should have known that the injury may be related to the employment. The Hearing Officer determined that the claimant did not timely report her work injury to the employer because August 31, 2015, is more than 30 days from the claimed injury and that because the claimant did not timely report her injury, the self-insured is relieved of liability under Section 409.002.

The Appeals Panel disagreed.

We conclude that the Hearing Officer erred in determining that the claimant did not timely report her injury because the 30th day after (date of injury), was Sunday, August 30, 2015, and the claimant gave notice on the next day, Monday, August 31, 2015. During the time period under consideration, 28 TEX. ADMIN. CODE § 102.3(a)(3) (Rule 102.3(a)(3)) provided that, if the last day of any period is not a working day, the period is extended to include the next day that is a working day. A working day is defined in Rule 102.3(b). In Appeals Panel Decision (APD) 950658, decided June 12, 1995, the Appeals Panel, citing Sections 3.11.014(a) and (b) of the Code Construction Act and Rule 102.3(a), held that where the 30th day after the date of injury was a Sunday, notice of injury was timely when given on the next working day, a Monday. See also APD 002549, decided December 11, 2000. Accordingly, we reverse the Hearing Officer’s determination that the self-insured is relieved from liability under Section 409.002 because the claimant failed to timely notify her employer pursuant to Section 409.001 and render a new decision that the self-insured is not relieved from liability under Section 409.002 because the claimant timely notified her employer pursuant to Section 409.001.

The Appeals Panel ultimately determined that no benefits were owed because the underlying disease (which the Appeals Panel had determined to have been reported timely) was not compensable.