R.C. 4123.522 provides:
“Thе employee, employer, and their respective representatives аre entitled to written notice of any * * * determination, order * * * or decision under this chapter and the administrator of workers’ compensation and his representativе are entitled to like notice for * * * [R.C. 4123.511 DHO and SHO orders] and [R.C. 4123.512 right to participate aрpeals]. An employee, employer, or the administrator is deemed not to have received notice until the notice is received from the industrial commission оr its district or staff hearing officers, the administrator, or the bureau of workers’ compensation by both the employee and his representative of record, both the еmployer and his representative of record, and by both the administrator and his representative.
“If any person to whom notice is mailed fails to receive the nоtice and the commission, upon hearing, determines that the failure was due to cause beyond the control and without the fault or neglect of such person or his reрresentative and that such person or his representative did not have actual knowledge of the import of the information contained in the notice, such pеrson may take the action afforded to such person within twenty-one days after receipt of the notice of such determination of the commission. Delivery of thе notice to the address of the person or his representative is prima-faсie evidence of receipt of the notice by the person.” (Emphasis added.)
LTV Steel relies on the emphasized portion in the first paragraph of R.C. 4123.522, arguing that notice of an order, when not received from the commission, is no notice at all. The commission and Sheppard rely on the emphasis in the second paragraph to argue that LTV Steel has not rebutted the presumption of notice receipt arising under the “mailbox rule.” We agree with the court of appeals’ reasoning and, therefore, affirm.
Employers and their representatives are entitled to receive notice from the commission under R.C. 4123.522, but that right is not self-executing. As the court of appeals fоund, the party alleging the failure to receive notice must first prove that (1) the failure of notice was due to circumstances beyond the party’s or the party’s representative’s control, (2) the failure of notice was not due to the party’s or thе party’s representative’s fault or neglect, and (3) neither the party nor the party’s representative had prior actual knowledge of the information contained in the notice. Weiss v. Ferro Corp. (1989),
The next question is whether LTV Steel sustained its burden of proof. Admittedly, some evidence in this record suggests that Sheppard might have fabricated the stamped order that the commission cited as evidence of LTV Steel’s actual knowledgе prior to October 16, 1995. On the other hand, Sheppard explained that he had takеn the order to his employer because LTV Steel had previously alleged a fаilure of notice, and the commission evidently believed his explanation.
The commission is the exclusive evaluator of weight and credibility, and as long as some evidence supports the commission’s decision, reviewing courts must defer to its judgment. State ex rel. Pass v. C.S.T. Extraction Co. (1996),
Judgment affirmed.