Workers’ Compensation Case Review: Do’s and Don’ts When Dealing with a Missing Transcript.

Aug 21, 2014 | WC & Other Laws

ICAO to Workers’ Compensation Bar: “Transcripts? We don’t need no stinking transcripts!”

In case you needed another reason to independently record workers’ compensation hearings (after asking permission of course) the Industrial Claims Appeals Panel (ICAO) found that although appellants are entitled to a record on appeal that includes a complete transcript of the proceedings at trial, it does not necessarily follow that the record is inadequate to permit appellate review.

After a hearing on compensability (in which claimant lost) the Administrative Law Judge (ALJ) advised the parties that the Office of Administrative Hearings (OAC) could not locate the recording of the hearing and that it was “likely not recorded due to operator error.”  The parties agreed to permit the ALJ’s hearing notes to be entered into the record and would notify the OAC if additional recorded testimony was requested.

Apparently neither party requested additional recorded testimony and after position statements were filed, the ALJ issued an Order denying the claim.  On appeal the claimant argued that the lack of a recorded hearing required a new hearing and that the record was incomplete for purposes of appellate review.

The ICAO disagreed, listing a number of factors that all counsel should consider:

  • Where electronically recorded hearing results in a transcript containing inaudible responses, our appellate courts have not required a new hearing if the relevant portions of the transcript are sufficient to permit review of the dispositive issues on appeal.
  • The party asserting insufficiency of the transcript must set forth the nature of the testimony allegedly missing from the record.
  • When the transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including his recollection.
  • The appellant must list any specific dispute as to any statements contained in the ALJ’s hearing notes or findings of fact.
  • The appellant should also identify any dispositive testimony which he believes is absent from the record.


As always, how this or any other case we discuss in this blog would apply to your case depends on many more factors.  We urge you to call us to see if you are entitled to workers’ compensation benefits.  Workers’ Compensation is difficult, confusing, and very complex.  Kaplan Morrell has helped thousands of injured workers since 1997 get the benefits they deserve.   Contact us here or call us at 303-780-7329 for your FREE CONSULTATION.


Cite:  Milroy v. City of Colorado Springs, WC No. 4-884-077 (January 30, 2014)