On the record as it stood, the claimant was entitled to have the decision of the single member reviewed "as if those reports were not parts of the record or, in the alternative, to recommit the case to the single member for further proceedings." Russo's Case, 1 Mass. App. Ct. 206, 207-208 (1973). In sum, the board should have allowed the employee's motion to strike the opinions of the insurer's experts.
However, since the reviewing board affirmed and adopted the findings of the single member, we look to those findings in determining whether the reviewing board's decision is correct. See Haley's Case, 356 Mass. 678, 679-680 (1970); Russo's Case, 1 Mass. App. Ct. 206 (1973). 2.
The only other argument put forth by the plaintiff is that because the areas serviced by the Cape Cod division are "far more sparsely populated than metropolitan Boston" the cost of making deliveries is higher and "may well justify a discount for customer pick-ups that would make no economic sense for the Boston licensee"; therefore, the plaintiff argues, the discount proposed here would not be discriminatory within the meaning of G.L.c. 138, § 25A. However, because this issue was not raised before the commission (or the Superior Court), we do not consider it. Russo's Case, 1 Mass. App. Ct. 206, 207-208 (1973). See Niles v. Boston Rent Control Admr., 6 Mass. App. Ct. 135, 151-152 (1978), and cases cited.
See also Boott Mills v. Board of Conciliation and Arbitration, 311 Mass. 223, 225 (1942). The facts here more closely resemble Russo's Case, 1 Mass. App. Ct. 206 (1973), where the parties agreed to the admission in evidence of certain physicians' reports after the conclusion of the hearing. We held in that case that, having agreed to the admission of certain medical reports, a party could not on appeal raise the issue that those reports were not properly before the administrative agency.
5. The owner also argues that the tenants should not be permitted to raise on appeal the questions of failure to comply with Regulation 3 and with Regulation 6 because these questions were not raised at the hearing before the administrator. See Russo's Case, 1 Mass. App. Ct. 206, 207-208 (1973). See also United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 36-37 (1952).
Section 1 of the 1969 statute added the following sentence to the definition of employer in G.L.c. 152, § 1 (5): "The word 'employer' shall include both the general employer and the special employer in any case where both relationships exist with respect to an employee." The single member, to whose decision we look (see Russo's Case, 1 Mass. App. Ct. 206), found that Ashland, which was in the earth moving and machinery rental business, sold a bulldozer to Lane about two weeks before August 30, 1972, the date of Ramsey's death while at work. At the time of the sale Lane "requested [that] Ashland loan them [Lane] an operator to run this bulldozer until Lane could get one of their own, because Lane was short an operator.
As the board affirmed and adopted without change the findings and decision of the single member, we must look to that decision to determine whether the action of the board is correct. Russo's Case, 1 Mass. App. Ct. 206 (1973). Sutherland's Case, ante, 58, 59 (1974).
Haley's Case, 356 Mass. 678, 679-680 (1970). Russo's Case, 1 Mass. App. Ct. 206 (1973). The employee's injury has been the subject of several proceedings before the Industrial Accident Board.
Haley's Case, 356 Mass. 678, 679-680 (1970). Russo's Case, 1 Mass. App. Ct. 206 (1973). The employee died on July 29, 1971, before the case had been heard by the reviewing board.