BOARD No. 7646691Commonwealth of Massachusetts Department of Industrial Accidents
Filed: February 4, 1998
REVIEWING BOARD DECISION.
(Judges Maze-Rothstein, McCarthy and Smith).
APPEARANCES.
James V. Miragliotta, Esq., for the employee Joseph J. Durant, Esq. for the insurer.
MAZE-ROTHSTEIN, J.
The insurer appeals from a decision in which an administrative judge awarded the employee temporary total incapacity benefits continuing from the October 24, 1991 date of injury. Because the transcript of the hearing proceedings is unavailable, we recommit the case for the parties to reconstruct as much of the record as is possible. If this effort is unsuccessful, a new hearing will have to take place.
The reviewing board cannot properly review a case for which the entire hearing record is unavailable. Under such circumstances, due process requires at least a reconstruction “sufficient to allow evaluation of the merits of an appeal and a determination as to the correctness of the rulings.” Fitzsimmonsv. Sigma Instruments, Inc., 7 Mass. Workers’ Comp. Rep. 12, 15 (1993), citing Harris v. Commissioner of Correction,409 Mass. 472, 475 (1991).
The parties are to expeditiously prepare as completely as possible a stipulation of the agreed material facts and/or affidavits and documentary evidence to present to the judge. The attorneys are under an `affirmative duty to use their best efforts to ensure that a sufficient reconstruction is made if at all possible’ in the spirit of collegiality and fairness.
Id., (quoting) Commonwealth v. Harris, 376 Mass. 74, 79 (1978). The judge may hear testimony if he considers that it could assist in the reconstruction effort. Miller v. Webster Spring,
9 Mass. Workers’ Comp. Rep. 181, 182 (1995).
If the judge determines that the reconstructed record is sufficient for the insurer to present its claims to the reviewing board, he shall return the case to us for an appellate decision on the merits. On the other hand, if the judge determines that a reconstruction of the transcript is not possible, he shall conduct a hearing de novo. Fitzsimmons, supra at 15-16.
So ordered.
______________________________ Susan Maze-Rothstein Administrative Law Judge
______________________________ William A. McCarthy Administrative Law Judge
______________________________ Suzanne E.K. Smith Administrative Law Judge
Filed: February 4, 1998