ROBERT BARNES, CLAIMANT-APPELLEE vs. LEVINE DISTRIBUTORS, EMPLOYER and TRANSAMERICA INSURANCE CO., INSURER and VAIL CONSTRUCTION COMPANY, EMPLOYER and SECOND INJURY AND COMPENSATION ASSURANCE FUND, RESPONDENTS-APPELLANTS

CASE NO. 468 CRD-2-86Workers’ Compensation Commission
APRIL 7, 1988

The claimant did not appear at the trial level nor did he appear on appeal.

Respondents Levine Distributors and Transamerica Insurance Company were represented at the trial level by Edward D. O’Brien, Jr., Esq., and on appeal by Christopher P. Hankins, Esq.

Respondent Vail Construction Company was not represented.

The Second Injury Fund was represented at the trial level by Robert Murphy, Esq., and on appeal by Brewster Blackall, Esq., both Assistant Attorneys General.

This Petition for Review from the March 6, 1986 Finding and Award of the Commissioner For the Second District was heard October 2, 1987 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Gerald Kolinsky and A. Thomas White, Jr.

OPINION

JOHN ARCUDI, Chairman.

A Voluntary Agreement between the claimant and Levine Distributors approved January 24, 1983 awarded Claimant benefits for a 10% permanent partial disability of the back as a result of a July 8, 1980 compensable injury. The Second District Commissioner ruled March 6, 1986 that Claimant had suffered a new injury to his back in August, 1983 while employed by the respondent Vail Construction Company. He also found that Respondent Vail was uninsured for workers’ compensation. Respondent Second Injury and Compensation Assurance Fund appealed the March 6, 1986 ruling requesting a transcript. As of the date of this appellate proceeding, no transcript was ever supplied.

In its Reasons of Appeal, the appellant contended there was no evidence to support the trial Commissioner’s finding that Claimant was an employee of the respondent Vail nor was there evidence to support the finding that Claimant suffered a compensable injury while in the course of that alleged employment. The Fund filed a Motion to Produce Transcript and urged a remand. We agree with their request as it is impossible to adjudicate appellant’s claim without a complete record to determine the evidentiary basis for the decision below.

We, therefore, remand for further proceedings including a rehearing if necessary.

Commissioners Gerald Kolinsky and A. Thomas White, Jr. concur.