BELIVEAU v. RAYTHEON, No. 00955690 (Nov. 28, 1995)


Michelle Beliveau, Employee v. Raytheon, Employer, Liberty Mutual Insurance Company, Insurer

BOARD No. 00955690Commonwealth of Massachusetts Department of Industrial Accidents
Filed: November 28, 1995

REVIEWING BOARD DECISION
(Judges McCarthy, Fischel and Wilson)

APPEARANCES

George F. Miller, Esq., for the employee.

Ralph J. Cafarelli, Esq., for the insurer.

McCARTHY, J.

Michelle Beliveau was employed by Raytheon for 16 years, most recently as a C.R. tube processor. Her job required her to do overhead work, lift tubes weighing up to 70 pounds and push carts laden with those tubes. (Dec. 3). On February 5, 1990 the employee felt pain in her upper right body while lifting tubes. There was no specific incident. The insurer accepted her claim and paid § 34 weekly temporary total incapacity benefits commencing February 5, 1990. Thereafter the insurer filed a complaint for discontinuance or modification of benefits. The complaint was denied at conference and a hearing de novo was held following the insurer’s appeal of the conference denial. On January 14, 1993 the administrative judge issued a decision whereby the insurer’s complaint for discontinuance was allowed as of April 23, 1992.

The employee appeals that decision on the basis that the judge’s conclusions are not supported by adequate subsidiary findings and that the discontinuance is unwarranted. For reasons not the fault of either party a hearing transcript is unavailable. The absence of a transcript leaves us unable to perform our appellate function.

Where a transcript is either incomplete or unavailable due process usually requires, at a minimum, sufficient reconstruction of the record in order that we may determine the merits of the appeal and the correctness of the rulings. Fitzsimmons v. Sigma Instruments, Inc., 7 Mass. Workers’ Comp. Rep. 12 (1993). When reconstruction cannot be achieved a hearing anew must be held.

The employee asserts that accurate reconstruction of the record is not possible and that proper pursuit of her appeal calls for a complete transcript of the actual hearing. We do not agree at this juncture. As previously stated, due process does not require complete reconstruction. The record need be reconstructed only sufficiently to allow for appellate review. So far as we can tell no attempt at reconstruction has been undertaken. The testimony of Doctors Otis and Weafer is preserved in their depositions and the administrative judge, the lay witnesses and both attorneys are available.

We do note that where the appeal is based solely on credibility issues reconstruction “`serves neither the interest of economy nor of justice.'”Scampini v. Digregorio Construction Co., Inc., 8 Mass. Workers’ Comp. Rep. (November 30, 1994), quoting Brown v. Pollack Corp., 7 Mass. Workers’ Comp. Rep. 205, 206 (1993). We caution that frivolous appeals may subject the appellant to § 14 penalties.

We return the case to the administrative judge, through the senior judge, to supervise the reconstruction. The parties are hereby directed to prepare as swiftly and completely as possible a stipulation of the agreed upon material facts, affidavits and documentary evidence and to present such to the administrative judge. The attorneys have an “`affirmative duty to use their best efforts to ensure that a sufficient reconstruction is made if at all possible.'” Fitzsimmons, supra, at 15, quoting Commonwealth v. Harris, 376 Mass. 74, 79 (1978).

When the administrative judge is satisfied that the reconstruction effort sufficiently lays out the evidentiary basis for the rulings and findings so that appellate review may follow he shall return the case to us. If the administrative judge discerns any inadequacies in the reconstruction process she may conduct a limited hearing de novo.

So ordered.

___________________________________ William A. McCarthy, Administrative Law Judge
___________________________________ Carolynn N. Fischel Administrative Law Judge
___________________________________ Sara Holmes Wilson Administrative Law Judge

Filed: November 28, 1995