BOARD No. 020645-90Commonwealth of Massachusetts Department of Industrial Accidents
Filed: May 21, 1998
REVIEWING BOARD DECISION
(Judges Smith, McCarthy and Maze-Rothstein).
APPEARANCES
J. Channing Migner, Esq., for the employee.
Ralph J. Cafarelli, Esq., for the insurer.
SMITH, J.
The employee appeals from a decision denying her claim for compensation. Though the transcript of the first day of hearing is available, as are the transcripts of the three medical depositions, the transcript of the second day of hearing is not. Without this transcript, we may be unable to perform our appellate function. We therefore recommit the case for reconstruction of the missing portion of the record.
Due process requires a sufficient hearing record to allow us to determine the merits of the appeal and the correctness of the rulings. Fitzsimmons v. Sigma Instruments, Inc., 7 Mass. Workers’ Comp. Rep. 12 (1993). There is no requirement that record be complete. Rather, reconstruction need be accomplished only to the extent that it allows for review of the issues raised in good faith by the appellant. Where substantial reconstruction is required and cannot be achieved, a new hearing must be held.
Because the judge who conducted the hearing no longer serves in the Department, we return the case to the senior judge for assignment to a different administrative judge to oversee the reconstruction. When the administrative judge is satisfied that the reconstructed record sufficiently sets forth the evidentiary basis for the rulings and findings challenged on appeal, the judge shall return the case to us for further appellate proceedings.
So ordered.
_____________________ Suzanne E.K. Smith Administrative Law Judge
_____________________ William A. McCarthy Administrative Law Judge
_____________________ Susan Maze-Rothstein Administrative Law Judge
FILED: May 21, 1998