BOARD No. 09682587Commonwealth of Massachusetts Department of Industrial Accidents
Filed: June 9, 1995
REVIEWING BOARD:
Judges Wilson, McCarthy, and Fischel.
APPEARANCES:
Lawrence M. Siskind, Esq., for the employee.
Gerard A. Butler, Esq., for the insurer.
WILSON, J.
The employee appeals from a decision of the administrative judge denying and dismissing his claim for temporary total benefits for a work-related back injury[1] on the basis that the judge’s general findings are not supported by his subsidiary findings and that the denial is unwarranted. For reasons not the fault of either party a transcript of the hearing is unavailable, without which we cannot perform our appellate function.
Appeals for which a transcript is incomplete or unavailable are controlled by Fitzsimmons v. Sigma Instruments, Inc.,
7 Mass. Workers’ Comp. Rep. 12 (1993). That case established that due process usually requires at a minimum reconstruction of the record sufficient to determine the merits of the appeal as well as the correctness of the rulings. Where reconstruction is not possible a new hearing must be held.
The employee argues that complete reconstruction of the record is not possible. As stated above, complete reconstruction is not required to satisfy due process. The record need be reconstructed only sufficiently to allow for appellate review. We are unable to discern any attempt by the parties to reconstruct the record. The deposition of Dr. Latshaw, the only medical provider to testify, is available as are the judge’s findings and rulings. In addition, insurer counsel is available as, apparently, are the lay witnesses. While the administrative judge who conducted the hearing no longer serves in the Department, we are unable to find any compelling reason that a different administrative judge could not conduct the reconstruction of the record and any attendant proceedings.
However, we point out that reconstruction “`serves neither the interest of economy nor of justice'” where the appeal is based solely on credibility issues. Scampini v. Digregorio Construction Co., Inc.,
8 Mass. Workers’ Comp. Rep. 377 (1994), quoting Brown v. Pollack Corp., 7 Mass. Workers’ Comp. Rep. 205, 206 (1993). Pursuit of a frivolous appeal may subject the appellant to § 14 penalties.
Since the administrative judge who filed this decision is no longer with the department, this matter is referred to the senior judge for reassignment. The parties are directed to prepare as expeditiously and completely as possible a stipulation of the agreed material facts, affidavits and documentary evidence for presentation to the 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). The case shall be returned to the reviewing board when the administrative judge is satisfied that reconstruction sufficiently sets out the evidentiary basis for the rulings and findings thus allowing for review of the appeal. If the new administrative judge finds the reconstruction inadequate to decide disputed, material issues of fact or credibility issues, a limited hearing de novo shall ensue.
So ordered.
Judges McCarthy and Fischel concur.