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Thompson v. Town of New Canaan

CASE NO. 5228 CRB-7-07-5

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

AUGUST 21, 2008

ROBERT J. THOMPSON

CLAIMANT-APPELLANT

v.

TOWN OF NEW CANAAN

EMPLOYER

and

WEBSTER INSURANCE

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Daniel P. Hunsberger, Sr., Esq., 35 Glen Hollow Drive, Monroe, CT 06468.

The respondents were represented by Scott Wilson Williams, Esq., Maher & Williams, P.O. Box 550, Fairfield, CT 06824.

This Petition for Review from the April 25, 2007 Finding and Dismissal of the Commissioner acting for the Seventh District was heard on December 14, 2007 before a Compensation Review Board panel consisting of Commission Chairman John A. Mastropietro and Commissioners Amado J. Vargas and Scott A. Barton.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the April 25, 2007 Finding and Dismissal of the Commissioner acting for the Seventh District, contending that the trial commissioner erred in concluding that the claimant’s application for benefits pursuant to § 7-433(c) C.G.S. was untimely. We find no error, and affirm the decision of the trial commissioner.1

The following factual determinations are pertinent to our review. The claimant was employed as a uniformed firefighter by the Town of New Canaan in May of 1976 and retired as a Captain in 2005. The parties stipulated that in accordance with the mandates of the Connecticut Heart and Hypertension Act (§ 7-433c C.G.S.),2 the claimant was required to undergo a preemployment physical when he was hired; however, neither side was able to produce a record of the results of this physical. The claimant filed a Form 30C with the Workers’ Compensation Commission office for the Seventh District on June 22, 2004, alleging a date of injury of July 10, 2003 and indicating “H/H” 7-433c as the type of injury.

On July 18, 1986, the claimant consulted with Basil Papaharis, M.D., for treatment of a bee sting. At the time of that examination, Dr. Papaharis recorded the claimant’s blood pressure as 142/92. On March 4, 1988, Dr. Papaharis performed a complete physical on the claimant and noted at that time that the claimant’s blood pressure was 150/90. In his office note, Dr. Papaharis wrote, “systolic hypertension probably weight-related, needs exercise stress test.” Findings, ¶ 8. At his deposition held on January 6, 2006, Dr. Papaharis stated, “as of March 4, 1988, [the claimant] had an elevation of his systolic blood pressure … and it was my opinion at the time that he didn’t need to be treated for hypertension, that he needed to address issues of weight in order to make his blood pressure become normal. So if you’re asking me, is his blood pressure elevated on that date, the answer is yes. Was I willing to diagnose hypertension, go ahead and treat hypertension, the answer is no.” Findings, ¶ 11.

Following the office visit of March 4, 1988 with Dr. Papaharis, the claimant underwent a stress test, the results of which were normal. On May 23, 1989, the claimant was once again examined by Dr. Papaharis, whose records indicate the claimant had a normal blood pressure reading of 130/84 on that date.

The claimant began treating with William Hale, M.D., on March 18, 1997. In his deposition of April 4, 2006, Dr. Hale testified that although he prescribed HCTZ (hydrochlorothiazide) for the claimant on May 15, 2003 due to a high blood pressure reading, he would not have diagnosed hypertension on that date. However, at an earlier point during his testimony of the same date, Dr. Hale stated that “he did in fact diagnose the Claimant with hypertension” at this examination. Findings, ¶ 15. Dr. Hale also testified that he would have shared his diagnosis with the claimant at the time of the examination. At trial, the claimant testified that he remembered his office visit with Dr. Hale in May of 2003, and said that the doctor “may have informed him that his blood pressure was a little bit high, but that he does not recall the doctor specifically telling him that he was suffering from hypertension.” Findings, ¶ 19.

Both Drs. Papaharis and Hale testified that they would describe hypertension as “a condition wherein a person has an elevation of either systolic blood pressure in excess of 140 and/or diastolic blood pressure of over 90 over a sustained and continuing period of time.” Findings, ¶ 4. Elevated systolic pressure readings in the range of 140 to 159 and elevated diastolic readings in the range of 90 to 95 generally result in a diagnosis of “stage one” hypertension.

Based on the foregoing, the trial commissioner determined the claimant did not suffer from hypertension prior to May 15, 2003, despite having had a number of prior elevated blood pressure readings.3 However, the trial commissioner did find that Dr. Hale diagnosed the claimant with hypertension on May 15, 2003 and prescribed HCTZ on that date to lower the claimant’s blood pressure. Since the trial commissioner concluded that the hypertension diagnosis was “made and relayed” to the claimant on this date, Findings, ¶ C, the claimant therefore had one year from May 15, 2003 to file a claim for benefits pursuant to § 7-433c C.G.S. As the claimant did not file his notice of claim for benefits until June 22, 2004, the trial commissioner dismissed the claim.

The claimant filed a Motion to Correct on June 25, 2007 which the trial commissioner denied in its entirety, and this appeal followed.

On appeal, the claimant contends the trial commissioner erred in concluding that Dr. Hale diagnosed hypertension on May 15, 2003 rather than July 10, 2003, thereby rendering untimely the Form 30C filed by the claimant on June 22, 2004. The claimant also avers that the trial commissioner committed reversible error by refusing to reconfigure several factual findings in the Finding and Dismissal in accordance with the changes proposed by the claimant in his Motion to Correct.

We begin our analysis by reciting the standard of deference we apply to a trial commissioner’s findings and legal conclusions. As this board recently articulated in Heilweil v. Montville-Board of Education, 5161 CRB-8-06-11 (October 24, 2007), quoting McMahon v. Emsar, Inc., 5049 CRB-4-06-1 (January 16, 2007),

… the role of this board on appeal is not to substitute its own findings for those of the trier of fact. Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 451 (2001). The trial commissioner’s role as factfinder encompasses the authority to determine the credibility of the evidence, including the testimony of witnesses and the documents introduced into the record as exhibits. Burse v. American International Airways, Inc., 262 Conn. 31, 37 (2002); Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999). If there is evidence in the record to support the factual findings of the trial commissioner, the findings will be upheld on appeal. Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (October 23, 2002); Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002). This board may disturb only those findings that are found without evidence, and may also intervene where material facts that are admitted and undisputed have been omitted from the findings. Burse, supra; Duddy, supra. We will also overturn a trier’s legal conclusions when they result from an incorrect application of the law to the subordinate facts, or where they are the product of an inference illegally or unreasonably drawn from the facts. Burse, supra; Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998).

It is axiomatic that in order for a claimant to collect workers’ compensation benefits, the claimant must prove that he sustained a legally cognizable compensable injury, defined by statute as an injury “arising out of and in the course of his employment.”4 The statutory basis for a workers’ compensation claim has historically been dependent upon establishing a causal connection between the claimant’s employment and the claimed personal injury.

In contrast, a claimant who elects to pursue benefits under the Connecticut Heart and Hypertension Act5 is not required to make such a showing; rather,

a claimant need show only that he or she is a uniformed member of a paid fire department or a regular member of a paid police department, whose pre-employment physical examination revealed no evidence of hypertension or heart disease, who now suffers a condition or an impairment of health caused by hypertension or heart disease that has resulted in death or disability, and has suffered a resultant economic loss.

Zaleta v. Fairfield, 38 Conn. App. 1, 5 (1995), quoting Suprenant v. New Britain, 28 Conn. App. 754, 758 (1992).

However, the procedural requirements for bringing a claim under either statutory scheme are the same. Pearce v. New Haven, 76 Conn. App. 441, 448 (2003), cert. denied, 264 Conn. 913 (2003), quoting Gauger v. Frankl, 252 Conn. 708, 712 (2000). The notice requirements for the timely filing of a workers’ compensation claim are set out in § 31-294c(a) C.G.S., which states, in pertinent part, that “[n]o proceedings for compensation under the provisions of this chapter shall be maintained unless a written notice of claim for compensation is given within one year from the date of the accident or within three years from the first manifestation of a symptom of the occupational disease, as the case may be, which caused the personal injury….”

The court’s analysis in Pearce, supra, provides an analytical framework for assessing whether a potential heart and hypertension claimant’s notice of claim6 is untimely and therefore deprives this agency of subject matter jurisdiction. In Pearce, the court affirmed a decision by this board concluding that a Form 30C filed in 1998 by a claimant who had received repeated warnings from his family physician in 1988, 1989, and 1990 regarding his elevated blood pressure readings was not timely filed. Citing Pernacchio v. New Haven, 63 Conn. App. 570, 576 (2001), the Pearce court stated,

Such notification is required by §§ 31-294b and 31-294c, despite whether those symptoms cause immediate permanent or partial disability. The reason for prior notice is to inform the employer of a possibility of a claim for benefits being filed at a later time. The employee need not be disabled at the time he or she files a notice that symptoms are being experienced related to hypertension or heart disease; the notice is required to alert the employer to a potential claim.

Pearce, supra, 449 (internal citations omitted).

As this board subsequently observed in Ciarlelli v. Hamden, 5098 CRB3-06-6 (April 1, 2008), “two key elements were held to be important in Pearce; the existence of hypertension, and knowledge sufficient to alert the claimant of the condition’s presence.” These two elements are precursors to effecting the timely notice of heart and hypertension claims. “Because causation by employment-related exposure is not legally part of this equation, and there is no workplace incident or pattern of trauma that may function as a date of injury, we are left with the emergence of symptoms of hypertension as the triggering mechanism for the filing of a notice of a § 7433c claim.” McCarthy v. East Haven, 5174 CRB-3-06-12 (May 22, 2008).

Absent a fixed time and place for the time of injury, the notification procedure contemplated by Pearce and its progeny therefore places the onus squarely on the claimant to file for benefits as soon as symptoms for hypertension become manifest. In Ciarlelli, supra, this board concluded, “[c]ollectively, the § 7-433c case law establishes that a claimant is required to notify his or her employer of a potential claim for benefits by filing a notice of claim when (1) the medical evidence shows that he or she has developed symptoms of hypertension and (2) he or she knows, or should know, that he or she has symptoms of hypertension that may require lifestyle changes and/or treatment (whether or not disability yet exists).” See also Hunt v. Naugatuck, 4607 CRB-5-02-12 (February 9, 2004); Chernak v. Stamford, 5012 CRB70510 (December 13, 2006); Peck v. Somers, 4640 CRB1033 (March 5, 2004).

When called upon to decide contested heart and hypertension claims, the trier is ultimately charged with evaluating the evidentiary record in order to determine when the requisite medical threshold has been reached. This board has observed that “the commissioner retains ‘considerable discretion to decide whether a doctor’s examination reveals evidence of hypertension,’ and that he has the sole authority to assign credibility to the testimony offered by lay and expert witnesses.” Zalot v. Bristol, 4256 CRB-6-00-6 (March 16, 2001). See also King v. New Britain, 3703 CRB6-97-10 (January 12, 1999); Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). In addition, “[a]s we have stated in several cases, there is no particular systolic or diastolic pressure that constitutes a legal hypertension line in this state.” Elumba v. Stamford, 4084 CRB-7-99-7 (August 10, 2000). See also Leary v. Stamford, 3280 CRB7-96-3 (September 17, 1997); King, supra; Anzidei v. Cheshire, 3782 CRB-8-98-3 (April 23, 1999). Rather, this board has asserted that the “established standard is that the time of onset of a claimant’s hypertension symptoms presents a factual question, as does whether a given high blood pressure reading constitutes a manifestation of that hypertension.” Kaminski v. Naugatuck, 4956 CRB-5-05-6 (June 28, 2006).

In the instant matter, the claimant contends the trial commissioner essentially “picked the wrong date” when he determined that the claimant was suffering from high blood pressure on May 15, 2003 rather than July 10, 2003. The claimant argues that Dr. Hale, in his deposition held on April 4, 2006, drew a distinction between the use of the word “hypertension” as “simply a shorthand statement of saying that one’s pressure is elevated above an accepted norm” and the use of the word to describe “the name of a disease process.” Appellant’s Brief, p. 8. Having elucidated this distinction, the claimant then goes on to assert that is it is “obvious” Dr. Hale was using the term in its former connotation rather than the latter at the claimant’s office visit in May of 2003. Id., p. 9. In support of this proposition, the claimant relies upon the following deposition testimony of Dr. Hale:

If you are asking me when I prescribed the hydrochlorothiazide, HCTZ, 5/15, did I think his blood pressure was elevated above a norm? Yes. Did I think he was potentially at risk for cardiovascular complications? Yes. Would I have written on an insurance form that he had established hypertension? No, not at that point. I’m distinguishing between a blood pressure reading and a diagnosis of a syndrome.

Respondent’s Exhibit 4, April 4, 2006 Deposition of William Hale, M.D., p. 22.

The claimant also relies upon this exchange which occurred during the deposition between claimant’s counsel and Dr. Hale:

Q: Would if be fair to say that on 5/15/03, there was some concern on your part, but there was not a definitive diagnosis that Mr. Thompson had hypertension in the traditional hypertensive setting as opposed to a weight type of setting, or a weight-related setting, or a lifestyle related setting?
A: As I said in the beginning, in the beginning of the physical, I felt he had a labile blood pressure increase which is not a fixed hypertension.
Q: It’s not a fixed? [sic]
A: Correct.
Q: What do you mean by “labile” then?
A: It means it fluctuates up and down.
Q: Would that indicate hypertension or simply elevated blood pressure?
A: It would indicate a trend towards hypertension that was being evaluated over time.

Id., pp. 16-17.

It is the claimant’s position that Dr. Hale’s testimony suggests the claimant claimant asserts, “Mr. Thompson “could only have been aware that his blood pressure was elevated and not that he suffered true hypertension.” Appellant’s Brief, p. 9. In addition, “[b]ecause Dr. Hale did not make his final conclusion until July 10, 2003, there is no evidence on the record to support the trial commissioner’s findings that Dr. Hale ‘did in fact diagnose the Claimant with hypertension at the May 15, 2003 evaluation.’ ” Id., p. 10.

We disagree. Our examination of the evidentiary record in this matter leads us to conclude that the facts in evidence were more than sufficient to support the trial commissioner’s inference that Dr. Hale diagnosed the claimant with high blood pressure and informed client of same on May 15, 2003. For instance (as the claimant accurately points out in his brief), the deposition of Dr. Hale also contains this exchange between respondent’s counsel and Dr. Hale:

Q: Did you assess or diagnose Mr. Thompson with hypertension at the May 2003 visit?
A: Yes.
Q: Okay. And you prescribed the HCTZ for those hypertensive symptoms?
A: Yes.
Q: And that was a finding, an assessment, that you shared with Mr. Thompson at the time?
A: Yes.

Respondent’s Exhibit 4, April 4, 2006 Deposition of William Hale, M.D., p. 11.

Relative to the issue of whether or not the claimant was aware of Dr. Hale’s motivation in prescribing the HCTZ on May 15, 2003, the deposition also contains the following exchange between Dr. Hale and respondent’s counsel:

Q: What is in your chart, though, is your recommendation or prescription for the medication, the HCTZ?
A: Correct.
Q: And you wouldn’t provide – if you are following your practice protocol, you wouldn’t provide a prescription to someone without explaining what the prescription was for?
A: No. I would have told him it was for his blood pressure.
Q: All right.
A: I may well have used those words – “This is to bring down your blood pressure.”

Id., p. 18.

The deposition also contains the following:

Q: Just that May 15–
A: That’s May 15.
Q: — 2003 record in particular, do you think it is more likely than not that you would have shared your findings and concerns regarding high blood pressure and/or hypertension with Mr. Thompson?
A: I would suspect that I would have shared my concern that his blood pressure was a bit elevated, and that I was starting him on medication to see his response, and that I would follow him up in a relatively short period of time to assess response.

Id., p. 20.

Finally, we find the following testimony relevant:

Q: Following that, is it reasonable for us to assume that you put Mr. Thompson on notice that you had a concern with his blood pressure as a result of that visit on May 15, 2003?
A: Yes.
Q: And that was the reason why you saw fit to prescribe a medication for that visit –
A: Yes.
Q: — as a result of that visit?
A: Yes.

Id., p. 21.

In light of the foregoing, then, we find the evidentiary record replete with testimony which more than adequately supports the trial commissioner’s inference that the claimant was diagnosed with and knew of his hypertensive condition on May 15, 2003. The trial commissioner’s findings on this point are further buttressed by Dr. Krauthamer’s observation during his deposition of October 31, 2006 that HCTZ is “accepted as a legitimate and recommended firstline drug for the treatment of hypertension,” Respondents’ Exhibit 9, October 31, 2006 Deposition of Martin Krauthamer, M.D., p. 16, as well as the following exchange between Dr. Krauthamer and respondents’ counsel:

Q: Is there any question in your mind that by May of 2003, there is a factual basis to support a finding of high blood pressure and hypertension?
A: No, there is. Definitely.
Q: And there was pharmacologic treatment for the high blood pressure at that time?
A: Yes.

Id., pp. 19-20.

Conversely, we find no support in the evidentiary record which would support the claimant’s assertions at trial that he did not know why Dr. Hale had prescribed the HCTZ. For instance, when queried by respondent’s counsel regarding the May 15, 2003 office visit, the claimant stated that “[Dr. Hale] said that my blood pressure was elevated. He gave me a diuretic, which I thought was for weight loss, water, fluids or whatever. I had no idea that drug was being prescribed for hypertension.” November 14, 2006 Transcript, p. 13. We are similarly unpersuaded by the claimant’s additional testimony to the effect that Dr. Hale “shared with me that my blood pressure was elevated a little bit, and he wanted me to get some exercise, and he gave me the diuretic and told me to come back and visit him in three to four weeks. That’s what he shared with me. He never shared he was giving me the medication for hypertension.” Id., p. 15.

As it would seem the trial commissioner was likewise unpersuaded by the claimant’s testimony in this regard, we therefore conclude that the trial commissioner’s findings with regard to the legally cognizable onset date of the claimant’s hypertension were not an abuse of discretion. As this board has frequently remarked, “[t]he determination as to whether a physical examination revealed any evidence of hypertension or heart disease is a factual one committed to the trier’s discretion.” King, supra. See also Cooper v. Seymour, 11 Conn. Workers’ Comp. Rev. Op. 274, 277, 1336 CRD-5-91-11 (November 19, 1993). While we would concede that some portions of Dr. Hale’s testimony were indeed contradictory, it is well settled that, “[i]t is the quintessential function of the finder of fact to reject or accept evidence and to believe or disbelieve any expert testimony. The trier may accept or reject, in whole or in part, the testimony of an expert.” (Internal citations omitted, emphasis added.) Tartaglino v. Department of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999). “It is … immaterial that the facts permit the drawing of diverse inferences. The [commissioner] alone is charged with the duty of initially selecting the inference which seems most reasonable and his choice, if otherwise sustainable, may not be disturbed by a reviewing court.” Fair v. People’s Savings Bank, 207 Conn. 535, 540 (1988), quoting Del Vecchio v. Bowers, 296 U.S. 280, 287 (1935).

The claimant has also raised as a claim of error the trial commissioner’s denial of the claimant’s Motion to Correct. Our mandate in this regard is quite clear: “[w]e, of course, may not change a commissioner’s finding unless it includes facts lacking an evidentiary basis or fails to include admitted or undisputed material facts. Where the substitution of factual findings would not alter the legal conclusion of the commissioner, however, a motion to correct the findings may properly be denied.” (Internal citations omitted.) Knoblaugh v. Greenwood Health Center/Beverly Enterprises, et al., 1608 CRB-1-92-12 (February 6, 1995), quoting Hill v. Pitney-Bowes, Inc., 8 Conn. Workers’ Comp. Rev. Op. 98, 832 CRD-7-89-3 (1990). See also Tovish v. Gerber Electronics, 32 Conn. App. 595, 599 (1993), appeal dismissed, 229 Conn. 587 (1994).

In the instant matter, our review of the claimant’s proposed corrections suggests that they were designed primarily to convince the trial commissioner to characterize the claimant’s office visit of May 15, 2003 as one in which Dr. Hale made a diagnosis of labile hypertension, and the office visit of July 10, 2003 as the one in which Dr. Hale diagnosed hypertension as an actual “disease process,” thereby affording the claimant one year from that date to file a notice of claim for benefits pursuant to § 7-433c C.G.S. While it is undisputed that Dr. Hale prescribed HCTZ to the claimant on May 15, 2003 and Zestoretic on July 15, 2003, in all other regards, the various proposed corrections contained in the claimant’s Motion to Correct seem to represent an attempt “to have the commissioner conform his findings to the [claimant’s] view of the facts.” D’Amico v. Dept. of Correction, 73 Conn. App. 718, 728 (2002). However, as the preceding analysis indicates, we have concluded that the record in this matter contains ample evidence in support of the trial commissioner’s inferences and subsequent findings as written. We do not elect to overturn these findings on appeal, and would merely remark instead that, “[t]he [claimant] cannot expect the commissioner to substitute the [claimant’s] conclusions for his own.” Id.

The decision of the trial commissioner acting for the Seventh District is accordingly affirmed.

Commissioners Amado J. Vargas and Scott A. Barton concur in this decision.

1 We note that several extensions of time were granted during the pendency of this appeal. BACK TO TEXT

2 § 7-433c C.G.S. [Benefits for policemen or firemen disabled or dead as a result of hypertension or heart disease] states, in pertinent part,

(a) Notwithstanding any provision of chapter 568 or any other general statute, charter, special act or ordinance to the contrary, in the event a uniformed member of a paid municipal fire department or a regular member of a paid municipal police department who successfully passed a physical examination on entry into such service, which examination failed to reveal any evidence of hypertension or heart disease, suffers either off duty or on duty any condition or impairment of health caused by hypertension or heart disease resulting in his death or his temporary or permanent, total or partial disability, he or his dependents, as the case may be, shall receive from his municipal employer compensation and medical care in the same amount and the same manner as that provided under chapter 568 if such death or disability was caused by a personal injury which arose out of and in the course of his employment and was suffered in the line of duty and within the scope of his employment, and from the municipal or state retirement system under which he is covered, he or his dependents, as the case may be, shall receive the same retirement or survivor benefits which would be paid under said system if such death or disability was caused by a personal injury which arose out of and in the course of his employment, and was suffered in the line of duty and within the scope of his employment. If successful passage of such a physical examination was, at the time of his employment, required as a condition for such employment, no proof or record of such examination shall be required as evidence in the maintenance of a claim under this section or under such municipal or state retirement systems. The benefits provided by this section shall be in lieu of any other benefits which such policeman or fireman or his dependents may be entitled to receive from his municipal employer under the provisions of chapter 568 or the municipal or state retirement system under which he is covered, except as provided by this section, as a result of any condition or impairment of health caused by hypertension or heart disease resulting in his death or his temporary or permanent, total or partial disability. As used in this section, the term “municipal employer” shall have the same meaning and shall be defined as said term is defined in section 7-467. BACK TO TEXT

3 In this regard, the trier disagreed with the opinion of Martin J. Krauthamer, M.D., whom the respondents had hired to perform a records review of the claimant’s medical file. At his deposition, Dr. Krauthamer indicated that he was of the opinion that, “the Claimant was in fact hypertensive as long ago as March 4, 1988, up and through March of 1998 ” Findings, ¶ 18. BACK TO TEXT

4 § 31-275(1) C.G.S. BACK TO TEXT

5 § 7-433c C.G.S. BACK TO TEXT

6 A claimant generally gives notice by filing a “Form 30C — Notice of Claim for Compensation (Employee to Commissioner and to Employer).” BACK TO TEXT

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