BOARD No. 05086891Commonwealth of Massachusetts Department of Industrial Accidents
Filed: April 4, 1997
REVIEWING BOARD DECISION
(Judges Fischel, Wilson and Levine)
APPEARANCES
G. Brian Shontz, Esq., for the employee
Paul T. Fisher, Esq., for the self-insurer
LEVINE, J.
The employee is before the reviewing board requesting that we vacate a decision of an administrative judge, who is no longer a member of the Department of Industrial Accidents, and remand the case for a hearing de novo. The transcript of one day of hearing is unavailable, and the parties have unsuccessfully attempted to reconstruct the record necessary for our consideration of the employee’s substantive arguments on appeal. Following Fitzsimmons v. Sigma Instruments, Inc.,
7 Mass. Workers’ Comp. Rep. 12 (1993), we recommit the case for a hearing to determine whether reconstruction is possible. As we stated inFitzsimmons,
If . . . the testimony cannot be completely reconstructed, the judge is to determine if the partially reconstructed record is adequate to present any basis for the [employee’s] claims, because a portion of the record, if dealing with the material issues, may be satisfactory to protect the appeal. Commonwealth v. Harris, [376 Mass.] at 79, 80 and cases cited. If the judge decides that reconstruction of the record is sufficient, he shall return the case to us for our decision on the merits of the appeal. On the other hand, the judge shall conduct a hearing de novo if he determines that it would be less cumbersome or that the proceedings cannot be sufficiently reconstructed.
Fitzsimmons, supra at 15-16.
Accordingly, we forward this case to the senior judge for reassignment to an administrative judge to determine whether such reconstruction of the record is, in fact, possible.
So ordered.
_________________________________ Frederick E. Levine Administrative Law Judge
_________________________________ Sara Holmes Wilson Administrative Law Judge
_________________________________ Carolynn N. Fischel Administrative Law Judge