The Ohio Supreme Court recently decided State ex rel. Nerlinger v. AJR Enterp., Inc., 116 Ohio St. 3d 314, 2007-Ohio-6438, a potentially significant new workers’ compensation opinion that addresses the Industrial Commission’s ability to accept or reject affidavit testimony. The injured employee failed to appear for his allowance hearing before the IC, and his claim was denied. Fourteen months later, the employee – now represented by counsel – filed a motion for reconsideration, attaching an affidavit saying that he did not receive the hearing notice. The IC, without making any express findings about the credibility of the employee’s affidavit, found that the notices were “properly mailed to the correct address of the injured worker.” On review, the Ohio Supreme Court held that the IC was exclusively responsible for evaluating the weight and credibility of evidence and did not need to explain why an affidavit was unpersuasive. 

On its facts, Nerlinger does not appear to be a momentous decision. It does, however, serve as a reminder of the importance of having a representative (e.g. supervisor or HR manager) present at the hearing of a contested claim, particularly where credibility may be an issue. Too often, employers believe that affidavit testimony is “good enough” for the IC. But the Nerlinger decision suggests that, in a contested claim, a hearing officer could largely ignore or discredit affidavit testimony in favor of “live” testimony. If that happens, unwary employers may be left with little recourse.