Muniz v. George Koteas D/B/A Action Cab

The claimant was represented by Francis Ficarra, Esq., 800 Clinton Avenue, P. O. Box 491, Bridgeport, CT 06606.

The respondent employer was represented by George R. Koteas, Esq., 782 Clinton Ave., P. O. Box 1778, Bridgeport, CT 06601-1778.

The Second Injury Fund was represented at trial by Robin Wilson, Esq., former Assistant Attorney General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120. The Fund did not file a brief or appear at oral argument.

This Petition for Review from the April 27, 1993 Finding and Award of the Commissioner acting for the Fourth District was heard June 24, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Nancy A. Brouillet.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondent employer has petitioned for review from the April 27, 1993 Finding and Award of the Commissioner for the Fourth District. He raises nine different claims on appeal, which we have distilled into four basic arguments for the purpose of our discussion here. These are: (1) the commissioner improperly failed to disclose a prior adversarial relationship between himself and the respondent; (2) the commissioner improperly failed to recognize the effect of a contract between the claimant and the respondent; (3) the commissioner improperly failed to give the respondent an opportunity to present witnesses; and (4) the commissioner improperly failed to make certain findings as to the cause of the claimant’s medical condition. We will address each claim in turn.

The commissioner found that the claimant became involved in an accident on August 5, 1991 while driving a taxicab owned by the respondent. Apparently, the cab rolled over his left foot when he stepped out to “answer a call of nature.” No findings were made regarding the extent of the claimant’s injury, the cause of his disability, if any, or his compensation rate. The commissioner did find that the respondent was not insured for workers’ compensation liability.

A January 3, 1991 rental agreement between the claimant and the respondent provided that the taxicab would be in the exclusive custody and under the control of the claimant, who would operate the vehicle as an independent contractor. The commissioner found that in practice, however, the claimant was required to work with the respondent’s radio dispatchers, whom he would call every time he carried a fare. The claimant was required to use the owner’s meter and to charge the owner’s flat fare on long trips, and was not allowed to take the vehicle home after work. He never received a paycheck from the respondent, but would split the day’s net proceeds evenly with the respondent after deducting the dispatcher’s ten dollar daily fee and the gas, insurance and sales tax from the gross take. The respondent also performed necessary repairs on the vehicle.

The commissioner found that the respondent controlled the method in which the claimant provided driving services and set the times of his shift. Although it was not set forth in the contract, the respondent also set the method and amount of payment for the claimant. The commissioner concluded from these facts that an employer-employee relationship existed between the respondent and the claimant, and that the injury was therefore compensable. The respondent has appealed from that decision.

First, the respondent argues that the commissioner should have disqualified himself from hearing the instant case. The respondent claims that two circumstances raise an inference of impropriety: (1) while practicing law, the commissioner previously represented clients against the respondent, and (2) in the past, the respondent had spoken to the commissioner regarding the effect of the contract at issue in this case. The respondent phrases the alleged impropriety as the commissioner’s “failure to disclose” past dealings with the respondent. We note that there is no indication that the respondent raised these concerns at any time before the appeal was filed.

“A request for the recusal or disqualification of a judge will generally not be considered for the first time on appeal.” Romeo v. H & L Chevrolet, Inc., 10 Conn. Workers’ Comp. Rev. Op. 72, 73, 1149 CRD-7-90-12 (March 31, 1992), citing Timm v. Timm, 195 Conn. 202, 205 (1985). Even where it is claimed that a judge had personal knowledge of disputed evidentiary facts, the issue of disqualification must be raised before appeal. Herrmann v. Summer Plaza Corporation, 201 Conn. 263, 274 (1986). Thus, we are not required to address the appellant’s first claim.

It is worth noting, however, that the Code of Ethics for Workers’ Compensation Commissioners promulgated by the Judicial Review Council requires a commissioner to recuse himself or herself when the commissioner’s impartiality might reasonably be questioned, including where “the Commissioner has represented a party or a lawyer with whom the Commissioner practiced,” or where the commissioner has “personal knowledge concerning disputed evidence.” The legal effect of the employer-claimant contract is not “disputed evidence,” and the trial commissioner never represented either of the parties in this case. The fact that the commissioner represented former clients against one of the parties does not automatically create the inference that he would be biased against that party. Recusal is an extraordinary practice which should be limited to situations where impartiality can reasonably be questioned. It would be unreasonable, however, to assume that a commissioner has a personal vendetta against every employer whom he opposed during private practice. The commissioner’s failure to recuse himself on these grounds thus does not constitute “plain error” subject to the review of this Board. See Romeo, supra, 74.

We next address the respondent’s contention that the commissioner improperly ignored the legal significance of the rental contract. As noted above, the commissioner found that the claimant and the respondent had entered into a rental agreement. This contract obligated the respondent to furnish a taxicab to the claimant, which cab would then be in the exclusive custody and under the control of the claimant. The agreement provided that the claimant was not required to provide an accounting to the respondent and was not required to use the respondent’s radio dispatch, which would be available. This agreement specifically averred that the claimant was to operate the vehicle as an independent contractor and not as an employee of the respondent.

Despite the language of this contract, the commissioner found that the true relationship between the respondent and the claimant was that of employer-employee. He based this conclusion on the findings detailed above regarding the actual operation of the respondent’s business, including his findings that the respondent controlled the time and method in which the claimant worked and that the respondent set the claimant’s pay. The respondent argues that the contract precluded such a conclusion.

Whether or not an individual is an employee is a factual question for the commissioner to decide. Keefe v. Flynn, 10 Conn. Workers’ Comp. Rev. Op. 98, 99, 1169 CRD-2-91-1 (April 23, 1992), citing Francis v. Franklin Cafeteria, Inc., 123 Conn. 320 (1937). “One is an employee of another when he renders a service for the other and when what he agrees to do, or is directed to do, is subject to the will of the other in the mode and manner in which the service is to be done and in the means to be employed in its accomplishment as well as in the result to be attained.” Kaliszewski v. Weathermaster Alsco Corporation, 148 Conn. 624, 629 (1961). On the other hand, “[a]n independent contractor is one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to the control of his employer, except as to the result of his work.” Chute v. Mobil Shipping, 10 Conn. Workers’ Comp. Rev. Op. 183, 186, 1321 CRD-7-91-10 (Sept. 1, 1992) (citation omitted), affirmed, 32 Conn. App. 16 (1993).

Here, the commissioner found that the respondent controlled the time and method in which the claimant worked. This clearly satisfies the definition of “employee” discussed in our caselaw and codified in § 31-275 C.G.S. See, e.g., Minuit v. P.D.F. Construction Co., 1551 CRB-3-92-11 (decided Oct. 7, 1994). Although the rental agreement attempted to label the claimant as an independent contractor, the commissioner was entitled to find that the facts supported a contrary conclusion. See Hynd v. General Electric Co., 10 Conn. Workers’ Comp. Rev. Op. 77, 1151 CRB-4-90-12 (April 3, 1992) (“freelance agreement” between claimant and respondent did not compel a conclusion that employee was an independent contractor). Indeed, the humanitarian policy behind the Workers’ Compensation Act would be greatly undermined if employers were allowed to circumvent its requirements by defining their employees as “independent contractors” regardless of the actual work relationship. We thus hold that the rental agreement did not preclude the commissioner’s finding of an employer-employee relationship within the meaning of the Workers’ Compensation Act.

The respondent next argues that the commissioner denied it the opportunity to present testimony regarding the compensability of the claimant’s injury when he failed to schedule a continuation of the hearing. The transcript indicates that, after the completion of George K. Koteas’ testimony on December 17, 1992, the commissioner asked the parties’ attorneys if there was any additional evidence regarding compensability. The claimant’s attorney stated that he might have one rebuttal witness on that issue. The commissioner then indicated that he would leave that issue open, giving the claimant’s attorney two weeks to notify him if the claimant wanted another hearing. No further hearings were held on that issue, however. The commissioner stated in his Finding and Award that “the parties notified the Commissioner that no further testimony was to be presented.” The respondent now protests that it gave no such notification to the commissioner, and that it was improper for him not to continue the hearing.

Administrative Regulation § 31-279-4 states in part that “[n]o party can assume the granting of a continuance to produce witnesses at a later date, or for any other reason not regularly recognized in a judicial proceeding.” It is within the broad discretion of the commissioner to grant or deny a continuance, and such a decision is virtually unreviewable. See Jackson v. Commissioner of Correction, 227 Conn. 124, 125 (1993) (Berdon, J., dissenting). Furthermore, the claimant, not the respondent, requested a continuance in this case. The respondent has not explained to this Board how it was prejudiced by the commissioner’s failure to schedule another hearing in order for the claimant to present a rebuttal witness. We thus have no basis on which to question the trial commissioner’s failure to allow further testimony.

The remainder of the respondent’s claims all relate to the causal relationship between the August 5, 1991 injury and the claimant’s incapacity and disability, if any. We need not discuss the merits of these claims. The only conclusions reached by the commissioner were that an employer-employee relationship existed between the claimant and the respondent and that the respondent had no workers’ compensation insurance. No findings were made regarding the extent of the claimant’s injury or the existence of a prior disability. The commissioner was fully entitled to restrict the hearing to the issue of the employer-employee relationship, as the respondent will have the opportunity to present evidence concerning other issues at subsequent proceedings. Both parties remain free to litigate issues such as causation, disability and the rate of compensation, at which time the respondent’s medical evidence can be considered. We also note that in further proceedings, the commissioner should consider whether to impose a fine against the respondent pursuant to § 31-288(c) C.G.S. for failure to comply with the insurance requirements of § 31-284(b) C.G.S.