BOARD No. 02834392Commonwealth of Massachusetts Department of Industrial Accidents
Filed: September 25, 1998
REVIEWING BOARD DECISION
(Judges Levine Carroll)
APPEARANCES
Daniel J. Harrington, Esq., for the employee.
Terence H. Buckley, Esq. for the self-insurer.
LEVINE, J.
The self-insurer appeals the administrative judge’s finding of a compensable emotional injury and award of § 34 benefits, reasonable psychiatric and medical care, and attorney’s fees and costs.
Although a transcript was requested at the reviewing board pre-transcript conference, the hearing stenographer has left the department, and several attempts to transcribe the stenographer’s notes have been unsuccessful. Without a transcript we are unable to perform our appellate function.
Where a transcript cannot be totally or partially produced, due process requires reconstruction of the record sufficient for evaluation of the merits of the appeal and the correctness of the rulings. Fitzsimmons v. Sigma Instruments, Inc., 7 Mass. Workers’ Comp. Rep. 12 (1993). Complete reconstruction is not necessary. Rather, there need be reconstruction of only so much of the record as to allow for review. If substantial reconstruction cannot be accomplished, a hearing de novo is required.
Counsel for both parties are available as are the claimant, the exhibits and the depositional testimony of the physicians.
Because the administrative judge credited both the employee and his co-employee, Bethel Keller, we point out that reconstruction “`serves neither the interest of economy nor of justice'” where the appeal rests solely on credibility issues. See Scampini v.DiGregorio Construction Co., Inc., 8 Mass. Workers’ Comp. Rep. 377, 378 (1994), quoting Brown v. Pollack Corp., 7 Mass. Workers’ Comp. Rep. 205, 206 (1993). The present case appears to include other issues.
We forward the case to the senior judge for reassignment to an administrative judge to oversee the reconstruction.[1] As expeditiously and comprehensively as possible, the parties shall prepare a stipulation of the agreed upon salient facts, affidavits and documentary evidence. Such stipulation is to be presented to the administrative judge. The attorneys are cautioned that they 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 endeavor sufficiently sets forth the evidentiary basis for the rulings and findings so that our appellate review may follow, he shall return the case to us. If the administrative judge ascertains any shortcomings in the reconstruction process he may conduct a limited hearing de novo.
So ordered.
________________________ Frederick E. Levine Administrative Law Judge
________________________ Martine Carroll Administrative Law Judge
FILED: September 25, 1998