Shelly FRANK, as Beneficiary of Eric Frank, Deceased, Appellant, v. LIBERTY INSURANCE CORPORATION, Appellee.
No. 03-06-00208-CV.
Court of Appeals of Texas, Austin.
April 11, 2008.
255 S.W.3d 314
For the foregoing reasons I respectfully dissent to the opinion on rehearing [on remand].
Paul Batrice, Law Offices of Gary L. Rodriguez, P.C., Austin, for Appellant.
Before Justices PEMBERTON, WALDROP and HENSON.
OPINION
BOB PEMBERTON, Justice.
Shelly Frank appeals from the district court‘s judgment dismissing her suit for lack of subject-matter jurisdiction. Frank had obtained an adverse decision of a Texas Workers’ Compensation Commission hearing examiner and then requested review by the Commission‘s appeals panel. The appeals panel concluded that Frank had failed to timely file her request for review and dismissed her administrative appeal. Frank then sued in district court for judicial review of the appeals panel‘s order. The carrier, Liberty Insurance Corporation, moved to dismiss Frank‘s suit for lack of subject-matter jurisdiction, urging that Frank had failed to exhaust her administrative remedies by timely seeking appeals panel review. The district court granted Liberty‘s motion.
Concluding that Frank timely invoked the appeals panel‘s jurisdiction, we reverse the judgment of the district court and remand for further proceedings.
Shelly Frank‘s husband, Eric Frank, had been an 11-year employee of Brinks, a security and armored vehicle provider. On June 28, 2004, Brinks requested that Eric Frank report to a “secret location.” On his way to this location, he sustained fatal injuries as a result of an automobile accident. As his beneficiary, Shelly Frank filed a claim for workers’ compensation benefits. Liberty, Brinks‘s insurer for workers’ compensation coverage at the time, contested the claim on the ground that injuries or deaths occurring while traveling to and from work are not compensable. Frank argued that her husband‘s death was compensable because the accident occurred while he was on a “special mission” within the course and scope of his employment.
Frank retained counsel to pursue her claim through the administrative processes of the Texas Workers’ Compensation Commission.1 On September 1, 2004, Frank‘s counsel sent written notice to the Commission that his firm was representing Frank in connection with her pending claim.2 Frank‘s counsel requested a benefit review conference. An attorney from the firm represented Frank at the benefit review conference on November 18, 2004. After the conference, which did not resolve the case, a contested case hearing before a Commission hearing examiner was held December 14, 2004. An attorney with the firm represented Frank at the hearing. On the following day, the hearing officer signed a “Decision and Order” finding that Frank was not entitled to benefits because Eric Frank had not been within the course and scope of employment at the time of his injury. The decision noted that Frank “appeared and was represented by” counsel at the hearing, identifying counsel by name.
There is no dispute that the Commission was required by its own rules to send a copy of the hearing officer‘s decision to both Frank and her counsel. Rule 102.5—the Commission‘s “General Rules for Written Communications to and from the Commission“—provides in relevant part:
After the Commission is notified in writing that a claimant is represented by an attorney or other representative, all copies of written correspondence to the claimant shall thereafter be sent to the representative as well as the claimant, unless the claimant requests delivery to the representative only. However, copies of settlements, notices setting benefit review conferences and hearings, and orders of the Commission shall always be sent to the claimant regardless of representation status. All written communications to the claimant or claimant‘s representative will be sent to the most recent address or facsimile number supplied on either the employer‘s first report of injury, any verbal or written communication from the claimant, or any claim form filed by the carrier via written notice or electronic transmission.
A copy of the Commission‘s letter transmitting the hearing officer‘s decision reflects that, on December 22, 2004, the Commission mailed copies of the decision to Liberty‘s counsel and Frank personally, and sent what it termed “information copies” to Brinks and to “Ombudsman.” The Commission did not send a copy to Frank‘s counsel as required by its rule 102.5(a). Frank observes that the Commission‘s sending of the decision to “Ombudsman” is consistent with its procedures for claimants who are not represented by counsel. See Act of May 12, 1993, 73rd Leg., R.S., ch. 269, § 1, sec. 409.041, 1993 Tex. Gen. Laws 987, 1196-97 (former
Frank‘s counsel did not receive a copy of the decision or any notice that a decision had been issued until January 28, 2005, when counsel happened to call the Commission to inquire as to the status of the proceeding.4 In response to this telephone call, the Commission faxed a copy of the hearing officer‘s decision to Frank‘s attorney that same day. Frank‘s attorney then immediately filed—on the same day—a request for review with the appeals panel.
The appeals panel held that it did not have jurisdiction to review the hearing officer‘s decision because Frank‘s request for review was not filed timely. The panel, relying on a long line of its decisions involving similar facts, reasoned that the Commission‘s mailing of the decision to Frank personally had alone triggered her deadline for filing her administrative appeal, that this deadline had lapsed before January 28, 2005, and that “we do not consider” whether or when her counsel ever received a copy of the decision as required by rule 102.5(a) because “the operative date for determining the timeliness of the appeal is the date the claimant, not his or her attorney, received the hearing officer‘s decision.” Evidently it is not unprecedented for the Commission to mail claimants copies of hearing officer decisions while misdirecting or failing altogether to send copies to claimants’ counsel as required by rule 102.5(a). In such instances, the appeals panel has ruled that the claimant‘s appeal deadline is triggered solely by the claimant‘s actual or deemed personal receipt of the decision without regard to when or if counsel received it.5
Frank then filed a suit for judicial review of the appeals panel‘s decision in the district court. Liberty filed a motion to dismiss the suit on the grounds that the district court lacked subject-matter jurisdiction because Frank had not exhausted her administrative remedies by timely re-
ANALYSIS
Frank brings a single issue contending that the district court erred in dismissing her suit for judicial review for lack of subject-matter jurisdiction because she had timely filed her request for review with the appeals panel and, therefore, did not fail to exhaust her administrative remedies. When reviewing the grant of a motion to dismiss based on a lack of subject-matter jurisdiction, we review the record de novo to determine whether the trial court had subject-matter jurisdiction. Lacy v. Bassett, 132 S.W.3d 119, 122 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (citing Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000)). A plaintiff must allege facts affirmatively demonstrating the trial court‘s jurisdiction to hear the case. Texas Ass‘n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 443-44 (Tex. 1993). We construe the pleadings in favor of the plaintiff, accepting all his allegations as true, and consider only the evidence pertinent to the jurisdictional inquiry. Bland, 34 S.W.3d at 555.
Statutory requirements that define, enlarge, or restrict the class of causes the court may decide or the relief the court may award are considered to be jurisdictional. Sierra Club v. Texas Natural Res. Conservation Comm‘n, 26 S.W.3d 684, 687-88 (Tex.App.—Austin 2000), aff‘d on other grounds, 70 S.W.3d 809 (Tex.2002). Consequently, a party‘s failure to exhaust administrative remedies under the workers’ compensation act—including timely filing a request for review with the appeals panel—deprives the district court of subject-matter jurisdiction over the party‘s suit for judicial review of the appeals panel‘s decision. Rivera, 124 S.W.3d at 712.
Whether Frank timely filed her request for judicial review with the appeals panel turns on the statutes and Commission rules governing when she was considered to have received the hearing officer‘s decision and the deadline for her to request review. The legislature has provided that “[t]o appeal the decision of a hearing officer, a party shall file a written request for appeal with the appeals panel not later than the 15th day after the date on which the decision of the hearing officer is received from the division....”
The Commission has also promulgated rules for determining when a hearing officer‘s decision is considered to be “received” by a party so as to trigger the 15-day deadline for requesting appeals panel review. Rather than determining when a party actually received the decision in every case, the Commission has crafted a regime whereby the date of receipt will be presumed or deemed based on when and how the Commission transmitted the decision to the party. At relevant times, subsection (d) of rule 102.5—another component of the Commission‘s “General Rules for Written Communications to and from the Commission“—provided:
(d) For purposes of determining the date of receipt for those written communications sent by the Commission which require the recipient to perform an action by a specific date after receipt, unless the great weight of evidence indicates otherwise, the Commission shall deem the received date to be five days after the date mailed; the first working day after the date the written communication was placed in a carrier‘s Austin representative box located at the Commission‘s main office in Austin as indicated by the Commission‘s date stamp; or the date faxed or electronically transmitted.
(d) The commission shall deem that the parties received the hearing officer‘s decision:
(1) five days after the date the commission‘s letter was mailed to the par-
ties, unless the great weight of evidence indicates otherwise; (2) the first working day after the date the written communication was placed in a carrier‘s Austin representative box located at the commission‘s main office in Austin unless the great weight of evidence indicates otherwise;
(3) the working day that it was faxed by the commission, if faxed during normal business hours as defined in § 102.3(c); otherwise, the next working day after the date faxed; or
(4) the working day that it was electronically transmitted by the commission, if transmitted during normal business hours as defined in § 102.3(c); otherwise, the next working day after the date electronically transmitted.
In its decision holding that Frank failed to timely request review, the appeals panel stated that “Commission records indicate that the hearing officer‘s decision was mailed to the claimant beneficiary on December 22, 2004.” The panel further observed that “the claimant did not dispute or provide evidence that she did not receive the hearing officer‘s decision from the Commission.” Frank has not challenged these factual determinations. Applying the deemed-date provision applicable to written communications sent by mail, the appeals panel held that Frank personally had “received” the decision five days after mailing—December 27, 2004. See
As noted, it is undisputed that Frank‘s counsel did not receive a copy of the decision until January 28, 2005. In the appeals panel‘s view, whether, when or if Frank‘s counsel received the hearing officer‘s decision was irrelevant for purposes of determining when Frank‘s 15-day appeal deadline began running. The panel summarized its rationale, and that of the prior appeals panel decisions on which it relied, as follows:
The Appeals Panel has held that since the 1989 [Workers’ Compensation] Act gives the party, not the attorney, the right to appeal, and provides the party, not the attorney, with 15 days in which to file an appeal, the operative date for determining the timeliness of the appeal is the date the claimant, not his or her attorney, received the hearing officer‘s decision. Texas Workers’ Compensation Commission Appeal No. 92219, decided July 15, 1992; Texas Workers’ Compensation Commission Appeal No. 941144, decided October 4, 1994. While Rule 102.5(a) does provide that written communications to the claimant shall be sent to the representative, this has been interpreted [by the Commission] to be a courtesy copy as provided for in Commission Advisory 93-11, signed November 4, 1993, and does not operate to extend or change the 15 days after receipt of the hearing officer‘s decision by the party. Texas Workers’ Compensation Commission Appeal No. 011059, decided June 26, 2001.
Tex. Workers’ Comp. Comm‘n, Appeal No. 050206, 2005 TX Wrk. Comp. LEXIS 59 (March 14, 2005).
In the Commission‘s Advisory 93-11, cited by the appeals panel, the Commission construed its rules to provide that only its communications sent directly to parties to workers’ compensation dispute resolution processes—claimants, carriers, and employers—constitute notice to those parties and that any communications sent to those parties’ respective counsel are mere “courtesy copies.”
[A]ll documents and notices that are required to be provided by the Texas Workers’ Compensation Commission to insurance carriers that provide workers’ compensation coverage will be placed in the Carrier‘s Austin Commission Representative‘s Box on the first floor in the Central Office. Notice to the Carrier for all purposes will be established by this notification.
....
If the Carrier was represented by an attorney at any proceeding before the commission, and the Commission has the address of such attorney in its files, then a courtesy copy of all documents related to workers’ compensation dispute resolution proceedings, including transmittal letters containing Benefit Review Conference Reports, Contested Case Hearing Decisions, and Appeals Panel Decisions will be mailed to such attorney.
All documents and notices related to workers’ compensation dispute resolution proceedings that are required to be provided by the Texas Workers’ Compensation Commission to claimants will continue to be mailed to the Claimant. Notice to the Claimant for all purposes
will be established by this notification. If the Claimant is represented by an attorney before the Commission, and the Commission has the address of such attorney in its files, then a courtesy copy of all such documents will be mailed to such attorney. All documents and notices that are required to be provided by the Texas Workers’ Compensation Commission to employers will continue to be mailed to the Employer. Notice to the Employer for all purposes will be established by this notification. If the Employer is represented by an attorney before the Commission, and the Commission has the address of such attorney in its files, then a courtesy copy of all documents related to workers’ compensation dispute resolution proceedings will be mailed to such attorney.
TWCC Advisory 93-11 (Nov. 4, 1993), available at http://www.tdi.state.tx.us/wc/news/advisories/ad93-11.html.
Frank disputes the Commission‘s interpretation of its rules. She urges that the Commission‘s view renders meaningless rule 102.5(a)‘s mandate that the Commission send the hearing officer‘s decision to both Frank and her counsel, as it permits a claimant‘s appeal deadline to expire without counsel ever receiving notice of the decision. To effectuate rule 102.5(a)‘s mandate, Frank argues, her appeal deadline must be construed to have been triggered only when her counsel, in addition to Frank herself, finally received the decision. Because her counsel immediately filed an appeal on her behalf once he received the decision, Frank asserts that she timely invoked the appeals panel‘s jurisdiction and did not fail to exhaust her administrative remedies. See
Liberty urges that we should defer to the Commission‘s interpretation of its own rules because it is not plainly erroneous or inconsistent with the text of the rules. Liberty argues that while rule 102.5(a) obligated the Commission to send copies of the hearing officer‘s decision to both Frank and her counsel, the rule is silent regarding the consequences of noncompliance. Liberty also points out that other language in rule 102.5(a) requires “copies of settlements, notices setting benefit review conferences and hearings, and orders of the Commission shall always be sent to the claimant regardless of representation status.” See
“We construe administrative rules, which have the same force as statutes, in the same manner as statutes.” Rodriguez v. Service Lloyds Ins. Co., 997 S.W.2d 248, 254 (Tex.1999). “Unless the rule is ambiguous, we follow the rule‘s clear language.” Id. The failure of an agency to follow the clear, unambiguous language of its own rules is arbitrary and capricious, and will be reversed. Id. at 254-55. Although we defer to an agency‘s interpretation where there is vagueness, ambiguity, or room for policy determinations in the regulation, we cannot defer to an administrative interpretation that is plainly erroneous or inconsistent with the regulation. Id. (quoting Public Util. Comm‘n of Tex. v. Gulf States Util. Co., 809 S.W.2d 201, 207 (Tex.1991)); BFI Waste Sys. of N. Am., Inc. v. Martinez Environ. Group., 93 S.W.3d 570, 575 (Tex. App.—Austin 2002, pet. denied). Further, as this Court has observed, a “competing factor” limiting the deference we might otherwise afford the Commission‘s interpretation of its own rules is the longstanding principle that “we must liberally construe the Workers’ Compensation Act in favor of the injured worker; thus, a strained or narrow construction is improper.” Ackerson v. Clarendon Nat‘l Ins. Co., 168 S.W.3d 273, 275 (Tex.App.—Austin 2005, pet. denied) (citing Keng, 23 S.W.3d at 349).
The text of rules, like statutes, is the first and foremost means of achieving our primary objective: ascertaining and giving effect to the intent of the body that enacted them. State v. Shumake, 199 S.W.3d 279, 284 (Tex.2006); Texas Dep‘t of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 642 (Tex.2004); Rodriguez, 997 S.W.2d at 254. Besides yielding our primary indicator of the drafters’ intent, this focus on the text of the enactment “ensures that ordinary citizens are able to ‘rely on the plain language ... to mean what it says.‘” Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 860 (Tex.2005) (quoting Fitzgerald v. Advanced Spine Fixation Sys., 996 S.W.2d 864, 866 (Tex.1999)). We must read the enactment as a whole and not just isolated portions, giving meaning to language consistent with its other provisions. City of Sunset Valley, 146 S.W.3d at 642. We must presume that the entire enactment was intended to be effective. Lexington Ins. Co. v. Strayhorn, 209 S.W.3d 83, 86 (Tex.2006).
Subsection (a) of rule 102.5 unequivocally requires that the Commission, once it receives written notification that a claimant is represented by counsel or other representative, “shall” thereafter send copies of “all written communications” to both the claimant and the representative.
The deemed receipt provisions of subsection (d), rule 102.5 and rule 143.3(d) must be construed in this context, especially where the former appears in the same rule as the dual notice requirement of subsection (a). See City of Sunset Valley, 146 S.W.3d at 642 (statutes must be construed as a whole, not just isolated portions). The parties’ dispute ultimately turns on a choice between two alternative “trigger events” under the deemed receipt provisions. Under Liberty‘s view, echoing that of the Commission, we should look only to when the Commission mailed the hearing officer‘s decision to Frank personally, without regard to when (or even if) it sent the decision to Frank‘s counsel. Under Frank‘s view, we should look to the communication through which the Commission completed its compliance with the dual-notice requirement of rule 102.5(a). The former construction would eviscerate the manifest intent of rule 102.5(a)‘s dual-notice requirement, while Frank‘s construction would give effect to both sets of provisions. We accordingly conclude that Frank‘s construction is the correct one.8 See Lexington Ins. Co., 209 S.W.3d at 86.
We also find instructive the supreme court‘s analysis in Commercial Life Insurance Company v. State Board of Insurance, 774 S.W.2d 650, 651-52 (Tex.1989). Commercial Life had initiated a proceeding in the department of insurance to change its name. After a hearing, the commissioner approved the name change but the board of insurance subsequently voted to overrule the commissioner‘s order. No notice of this order was given to Commercial. The APA required that as a prerequisite to appealing an agency order or decision in a contested case, a motion for rehearing had to be filed within 15 days after the date of rendition. Commercial learned of the order 17 days after it had been rendered. Commercial immediately filed a motion for rehearing, which was overruled by operation of law, and then sued for judicial review. A plea to the jurisdiction was filed on the basis that Commercial had failed to exhaust its administrative remedies by filing a timely motion for rehearing. The trial court sustained the plea and dismissed the suit. Id.
Here, the Commission has imposed upon itself an obligation not only to ensure that claimants are served some notice of its decisions sufficiently promptly to enable them to seek review, but also to provide such notice through both claimants and their representatives. The purposes of this dual-notice requirement, like the notice requirement in Commercial Life Insurance, would be compromised unless the appeal deadlines under the Commission‘s rules are interpreted not to commence until the agency fully complies with its duty to give notice. Commercial Life Ins. Co., 774 S.W.2d at 652.
The Commission‘s view that its failure to comply with its rule 102.5(a) mandate is irrelevant for appeal deadline purposes is based on the same sort of “strained or narrow construction” that this Court condemned in Ackerson, 168 S.W.3d at 275. Its notion that “since the 1989 Act gives the party, not the attorney, the right to appeal, and provides the party, not the attorney, with 15 days in which to file an appeal, the operative date for determining the timeliness of the appeal is the date the claimant, not his or her attorney, received the hearing officer‘s decision” lacks support. Section 410.202 of the labor code may “give[] the party, not the attorney, the right to appeal,” and impose deadlines
Similarly strained and inconsistent with the Workers’ Compensation Act and the Commission‘s own rules is the notion, stated in Advisory 93-11, that communications to a claimant‘s counsel are mere “courtesy copies” irrelevant to appeal deadlines. That view is squarely inconsistent with the text of rule 102.5, as we have previously explained.11 There is likewise no support for that view in the Workers’ Compensation Act. There is support in the act and the Commission‘s rules for treating written communications sent to carriers’ counsel as mere “courtesy copies.” The legislature has explicitly required carriers to designate an Austin representative and provided that “[n]otice to the designated agent constitutes notice to the insurance carrier.”
We hold that Frank did not receive the hearing officer‘s decision until January 28, 2005, and that she complied with the 15-day deadline for requesting appeal panel review by filing her request on the same day.
Dissenting Opinion by Justice WALDROP.
I disagree with the majority‘s conclusion that the Texas Workers’ Compensation Commission has misinterpreted its own rules with respect to what constitutes notice to a claimant for the purposes of calculating deadlines. Consequently, I respectfully dissent.
The majority concludes that, because the Commission has adopted a rule that requires it to send written communications to both a claimant and the claimant‘s lawyer (if the claimant has a lawyer), the time for appealing a Commission order does not begin to run until notice of a Commission order is received by both the claimant directly and the claimant‘s lawyer. However, the text of rule 102.5(a) does not say this, nor does any statute, law, or other regulation governing the Commission. Rule 102.5(a) provides as follows:
After the Commission is notified in writing that a claimant is represented by an attorney or other representative, all copies of written correspondence to the claimant shall thereafter be sent to the representative as well as the claimant, unless the claimant requests delivery to the representative only. However, copies of settlements, notices setting benefit review conferences and hearings, and orders of the Commission shall always be sent to the claimant regardless of representation status. All written communications to the claimant or claimant‘s representative will be sent to the most recent address or facsimile number supplied on either the employer‘s first report of injury, any verbal or written communication from the claimant, or any claim form filed by the carrier via written notice or electronic transmission.
Consequently, it is inaccurate to conclude that the Commission‘s Advisory 93-11 (promulgated in November 1993) stating that notice to the claimant for all purposes will be established by the notice sent directly to the claimant is inconsistent with rule 102.5(a). There is nothing inconsistent between the rule and the advisory. The rule deals with how many copies of written communications the Commission will send out and to whom. The advisory deals with which of a number of multiple notices to a claimant will operate as formal notice. The rule and the advisory deal with entirely different subjects.
The running of the particular appellate deadline at issue in this case is governed by statute, not rule 102.5. Texas Labor Code section 410.202 provides:
To appeal the decision of a hearing officer, a party shall file a written request for appeal with the appeals panel not later than the 15th day after the date on which the decision of the hearing officer is received from the division and shall on the same date serve a copy of the request for appeal on the other party.
The Commission adopted rule 143.3 to further define the appeals process at the Commission. As would be expected, rule 143.3 tracks section 410.202 with respect to when the 15-day period for filing an appeal with the appeals panel begins to run—“not later than the 15th day after receipt of the hearing officer‘s decision.”
Frank does not contest that she personally received the hearing officer‘s decision more than 15 days before she filed a notice of appeal with the appeals panel. Her complaint is that her lawyer did not receive the decision more than 15 days before the notice of appeal was filed. This complaint does not alter, in any way, the fact that Frank personally received the decision—satisfying the express statutory requirement of notice—or that Frank failed to comply with the statutory deadline for filing a notice of appeal.
While the majority‘s insistence on notice to the party‘s attorney is consonant with standard civil litigation practice and the rules of civil procedure, it is not required by or necessarily consistent with the workers’ compensation claims process. Under the rules of civil procedure, a party‘s attorney is officially designated as the formal agent for receiving written communications. See
In an effort to accommodate lawyers, the Commission adopted rule 102.5(a) obligating itself to send them copies of written communications as well as sending communications directly to claimants. This rule, however, altered nothing about formal notice under section 410.202 or rule 143.3. The Commission issued Advisory 93-11 to make sure everyone understood that the fact that it was sending copies of written communications to both the claimant and the claimant‘s representative did not change which of these deliveries would operate as the statutorily required notice to the claimant for purposes of calculating deadlines. These have been the operating rules of the Commission since November 1993, and there have been multiple decisions by the Commission‘s appeals panel upholding this application of the rules during the intervening fourteen plus years. Given the way the claims process works at the Commission, the procedure implemented by the Commission is not unreasonable.
It is reasonable for the Commission to rely on a single notice to be the operative trigger for appellate deadlines. It is also reasonable for the Commission to agree to send copies of written communications to both claimants and their lawyers. What authority prevents the Commission from
While, as a matter of policy, one might want a system where the operative notice to a represented claimant is the notice sent to the lawyer, that is not the system that has been mandated for the Commission by either the legislature or by the Commission itself. The majority‘s desire to correct an oversight that looks to have contributed to Ms. Frank‘s missing her deadline for appealing the decision of the hearings officer is understandable.3 However, the courts are not authorized to mandate this requirement in the absence of statutory or regulatory direction. Yet, this is precisely what the majority is doing when it creates a remedy for the Commission‘s failure to send the lawyer a copy of the hearing officer‘s order under rule 102.5(a) that is not in the rule itself, not in any other rule, and not in a statute.
When reviewing an agency interpretation of its own rules, we start with the proposition that the agency‘s interpretation of its own rules is entitled to deference unless it is plainly erroneous, inconsistent with the text of the rule, or inconsistent with a statute or the constitution. The majority concludes that the Commission‘s position that the notice received directly by a claimant will be the operative notice is inconsistent with the text of rule 102.5(a). This conclusion then becomes the basis to find that the filing period does not begin to run until two notices of a Commission order are delivered to a claimant—one to the claimant directly and one to the claimant‘s lawyer. However, I do not see what text in rule 102.5(a) speaks in any way to which of the written communications sent by the Commission will operate as formal notice for the purpose of calculating the statutory deadline of section 410.202, much less that it requires notice to both the lawyer and the claimant to trigger the filing deadline. Although I am sympathetic to Ms. Frank‘s situation, I believe the applicable jurisdictional statute mandates dismissal of her appeal.
I would affirm the judgment of the trial court.