Gianfrancisco v. A & P Tea Company d/b/a Food Emporium

CASE NO. 1429 CRB-7-92-6

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JANUARY 26, 1994

YOLANDA GIANFRANCISCO

CLAIMANT-APPELLANT

v.

A & P TEA COMPANY d/b/a FOOD EMPORIUM

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Edward L. Cleary, Esq. and Victor M. Ferrante, Esq., Ferrante & Cleary, 2970 Main Street, Bridgeport, CT 06606.

The respondent was represented by James Baldwin, Esq. and Michael L. Tierney, Esq., Cotter, Cotter & Sohon, P.O. Box 5660, Hayview Station, Bridgeport, CT 06610.

This Petition for Review from the May 26, 1992 Post-Remand Finding and Dismissal of the Commissioner for the Seventh District was heard April 16, 1993 before a Compensation Review Board panel consisting of the Commission Chairman Jesse Franks and Commissioners George A. Waldron and Donald H. Doyle, Jr.

OPINION

JESSE FRANKL, CHAIRMAN. The claimant has petitioned for review of the Seventh District Commissioner’s May 26, 1992 Post-Remand1 Finding and Dismissal where the commissioner concluded that the claimant failed to sustain her burden of proof as to the compensability of an alleged injury to her feet.

The claimant argues that the trial commissioner improperly concluded that the claimant had not met her burden of proof to establish compensability. Essentially, the claimant asks us to retry the facts. This we cannot do as the power and duty of determining the facts rests on the commissioner, the trier of facts. Fair v. People’s Savings Bank, 207 Conn. 535, 538-42 (1988).

Here, the trial commissioner apparently did not find the claimant’s version of how the injury occurred to be credible; see Post-Remand Finding and Dismissal, paragraph 8; based on inconsistencies in the evidence. “The trier of the facts determines with finality the credibility of the witnesses and the weight to be accorded their testimony.” (Internal quotation marks omitted.) Miller v. Kirshner, 225 Conn. 185, 198 (1993); State v. Robinson, 213 Conn. 243, 256 (1989). This means that the commissioner was free to believe some, all or none of the claimant’s testimony. State v. Sherbacow, 21 Conn. App. 474, 480, cert. denied, 216 Conn. 808 (1990). Because the conclusions drawn by the trial commissioner from the facts found did not result from an incorrect application of the law or from an inference illegally or impermissibly drawn from the subordinate facts, the commissioner’s conclusions must stand. Fair v. People’s Savings Bank, supra, 539.

We, therefore, affirm the trial commissioner and deny the appeal.

Commissioners George A. Waldron and Donald H. Doyle, Jr. concur.

1 See Gianfrancisco v. A & P Tea Co., 10 Conn. Workers’ Comp. Rev. Op. 94, 1124 CRD-7-90-1 (1992). BACK TO TEXT