A Few Words about Affidavits

By Judge Pamela B. Johnson                                                                      

The Tennessee Workers’ Compensation Reform Act of 2013 established the Tennessee Court of Workers’ Compensation Claims, effective July 1, 2014. Lawyers and litigants appearing before the Court require an understanding of the Workers’ Compensation Law. It has been said before, but it bears repeating:  It is equally important that the parties know and follow the Mediation and Hearing Procedures and Court’s Practice and Procedures, available on the Court’s Web site.

In recent cases, parties and their counsel have asked about the importance of affidavits in the new process for adjudicating workers’ compensation claims.
In an Expedited Hearing, the Court will decide the issues presented based upon affidavits, depositions or other evidence timely filed with the Court Clerk. At the time the Request for Expedited Hearing (REH) is filed with the Court Clerk, the REH must be accompanied by an affidavit or other evidence supporting the benefits or relief sought. No later than five business days after the REH is filed, the opposing party must file a response and attach affidavits and other evidence demonstrating why the requesting party is not entitled to the benefits or relief sought. Note:  The parties do not need to refile affidavits previously filed with the mediator prior to the issuance of the Dispute Certification Notice. 
It is important to note that, if a requesting party intends to rely upon deposition testimony instead of an affidavit, then the requesting party should file the deposition transcript with the REH in lieu of the affidavit. Additionally, if the requesting party intends to introduce live testimony during the hearing, it is not necessary that the requesting party file an affidavit or deposition transcript with the REH. In such case, the requesting party should identify the witnesses on the bottom of the REH form and indicate whether the witness’s testimony will be introduced through an affidavit, deposition transcript, or through live testimony at the hearing.
The parties should be aware that an affidavit or other evidence filed after the time period set forth above may not be accepted into evidence in the on the record, telephonic or in-person evidentiary hearings. Said another way, affidavits or other evidence filed within the appropriate time period set forth above will be accepted as proof in Expedited Hearings, whether conducted via on-the-record, telephonic or in-person. Note, however, that affidavits will not be accepted as evidence at a Compensation Hearing (a final hearing) other than for impeachment purposes.
The weight to be given the affidavit will be determined by the judge. If the Court conducts a telephonic or in-person evidentiary hearing, the Court will make rulings upon the live testimony and evidence introduced during the evidentiary hearing, in addition to the affidavits, depositions and any other evidence timely filed with the Clerk.
So what information should the affidavit contain? According to longstanding Tennessee caselaw, the word “affidavit,” ex vi termini, means an oath reduced to writing. See Grove & Jenkins v. Campbell, 17 Tenn. 7, 10 (1836). Black’s Law Dictionary defines affidavit as “[a] written or printed declaration or statement of facts, made voluntarily, and confirmed by the oath or affirmation of the party making it, taken before an officer having authority to administer such oath. An affidavit must be based upon the personal knowledge of the affiant. See generally, State, Dep’t of Human Services v. Neilson, 771 S.W.2d 128, 130 (Tenn. Ct. App. 1989).
In the alternative, when an affidavit or sworn statement is not readily available, the Court will accept Declarations Made Under Penalty of Perjury as provided in Rule 72 of the Tennessee Rules of Civil Procedure. Under Rule 72, an unsworn declaration made under penalty of perjury may be filed in lieu of an affidavit or sworn statement. Such declaration must be signed and dated by the declarant and must state in substantially the following form: “I declare (certify, verify or state) under penalty of perjury that the foregoing is true and correct.”

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