5 Mass. App. Ct. 891

November 14, 1977

1. We need not consider the correctness of the single member's evidentiary rulings complained of by the employee, as there has been no showing that he was in any way prejudiced thereby. See Vaz's Case, 342 Mass. 495, 498 (1961). See also Indrisano's Case, 307 Mass. 520, 523 (1940), and cases cited. The record does not reveal, through offers of proof or otherwise, what additional competent evidence, if any, the employee would have presented if he had been permitted to introduce testimony about (a) his condition before October 11, 1972, (b) his vision problems, or (c) "the expression on his face" on some undisclosed occasion or occasions. The exclusion of the question put to Dr. Leary on direct examination concerning the employee's prospects of finding other types of work (see and compare Frennier's Case, 318 Mass. 635, 638-640 [1945]) could not have harmed the employee, as the doctor was allowed to answer the question on redirect. 2. The contention that the findings entered by the single member and adopted by the reviewing board should be set aside as against the weight of the evidence flies in the face of the well settled standard of review in workmen's compensation cases. See e.g., Hachadourian's Case, 340 Mass. 81, 85 (1959). While there was evidence to support a conclusion that the employee's disability was total rather than only partial, no such conclusion was required. See Chapman's Case, 321 Mass. 705, 707 (1947), and cases cited. Shirley's Case, 355 Mass. 308, 310-311 (1969), and LaFlam's Case, 355 Mass. 409, 410-411 (1969), relied on by the employee, are not to the contrary. 3. The employee's objection to the form and sufficiency of the subsidiary findings (compare DiClavio's Case, 293 Mass. 259, 261-262 [1936]) is not properly before us, as it is apparent from the "Rulings of Law and Order for Judgment" entered by the judge that that was not among the alleged errors of which the employee sought judicial review in the Superior Court (contrast Haley's Case, 356 Mass. 678, 683 [1970]), and that he is seeking to assert it for the first time in this court. See Hummer's Case, 317 Mass. 617, 622-623 (1945). The contention, in any event, is without merit. Trefrey's Case, ante, 773 (1977), and cases cited.

Judgment affirmed.


5 Mass. App. Ct. 891

November 17, 1977

We need not rule upon the plaintiff's contention as to the date of the accrual of its cause of action under the subrogation provision of G. L. c. 90, Section 340, as amended by St. 1971, c. 1079, Sections 2,3 (see St. 1973, c. 917, Section 2; Lumbermens Mut. Cas. Corp. v. Bay State Truck Lease, Inc., 366 Mass. 727, 729 & n.1 [1975]), because the "facts" on which the contention is based, as asserted in the plaintiff's brief on appeal, are not properly before us. It appears from the appendix that the only relevant facts presented to the trial judge were in the form of oral representations of counsel, that no transcript of the hearing was prepared, and that the plaintiff did not repair that omission by availing itself of the remedy afforded by Mass.R.A.P. 8(c), 365 Mass. 850 (1974), or by any other permissible means. See Nolan v. Weiner, 4 Mass. App. Ct. 800 (1976). We see no occasion to send for

Page 892

the original papers for the purpose of exploring the remote possibility that they contain something to support the plaintiff's factual assertions which is not included in the appendix. See Haddad v. Board of Appeals of Medford, 4 Mass. App. Ct. 843 (1976), and cases cited. It follows that the plaintiff has failed to show any error of fact or law in the judge's conclusion that the cause of action "accrued on March 9, 1973, and not on January 7, 1974 . . . ." That being the only issue argued in the plaintiff's brief, the judgment must be affirmed.

So ordered.