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CASE NO. 3001 CRB-3-95-2
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
OCTOBER 18, 1996
JANET HANSON, Surviving Spouse Of ALLEN HANSON
TRANSPORTATION GENERAL, INC. d/b/a METRO TAXI
SECOND INJURY FUND
The claimant was represented by Lawrence Sgrignari, Esq., Sgrignari, Pinkus & Sachs, 3127-3129 Whitney Ave., Hamden, CT 06518-2318.
The respondent employer was not separately represented at oral argument. Notice sent to Jeffrey J. Pargament, Esq., 888 17th St. NW, Washington, D.C. 20006.
The respondent insurer was represented by Jason M. Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033.
The Second Injury Fund was not represented at oral argument. Notice sent to Ernie Walker, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.
This Petition for Review from the February 6, 1995 Finding and Dismissal of the Commissioner acting for the Third District was heard February 23, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta Smith Tracy and Amado J. Vargas.
JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the February 6, 1995 Finding and Dismissal of the Commissioner acting for the Third District. She argues on appeal that the commissioner improperly determined that her late husband was an independent contractor rather than an employee of the respondent Metro Taxi. We affirm the trial commissioner’s decision.
The claimant’s decedent, Allen Hanson, was tragically murdered on April 16, 1990 while operating a Metro Taxi. He had been driving a Metro Taxi cab since 1987. The commissioner found that Metro Taxi operated a fleet of taxicabs solely by utilizing owner-operator and lease agreements, with the former being the more popular contract between driver and company. On the date of his death, the decedent was affiliated with Metro Taxi pursuant to an owner-operator agreement. Under said agreement, the decedent would pay Metro Taxi $425.00 per week for “stand dues,” which covered the leasing certificate for the cab, taxes, and insurance. He was required to mark his cab according to Metro Taxi’s instructions, and had to pay Metro Taxi $100 per week in additional stand dues for utilizing a second driver while he was working at his other job at Yale-New Haven Hospital. The decedent was responsible for obtaining his own public service license, which was a requirement of driving a taxicab.
After considering the evidence, the commissioner found that the decedent was entitled to establish the hours, if any, he wanted to drive the cab, along with his route. He did not have to respond to dispatcher calls, was not subjected to a dress code, and did not have to keep Metro Taxi apprised of the location of his vehicle. The decedent did not account to Metro Taxi for the fares he received, and did not receive a salary, fringe benefits, or reimbursement for maintenance and gasoline expenses from Metro Taxi. He had also signed an agreement with Metro Taxi indicating that he was an independent contractor. Although the Department of Transportation (DOT) prescribed regulations that Metro Taxi applied to the decedent, the commissioner found that they did not indicate an employer-employee relationship. He thus concluded that the claimant had not proven the existence of an employment relationship between the decedent and Metro Taxi, and dismissed the claim for benefits. The claimant has appealed from that decision.
The claimant essentially makes two arguments on review: that the commissioner should have used a different legal test in determining whether the decedent was an employee or an independent contractor, and that, even under the test he did use, the facts do not support the conclusion that the decedent was not an employee of Metro Taxi. Regarding the former contention, the claimant had urged the commissioner to use a “relative nature of the work” test instead of a “control” test in determining the existence of an employment relationship. Under this test, employment is found “when the work being done is an integral part of the regular business of the employer, and when the worker, relative to the employer, does not furnish an independent business or professional service.” 1B Larson Workmen’s Compensation Law § 45.00. The claimant argues that the underlying findings in this case are sufficient to find employment under that test, and that this test better suits the remedial purpose of workers’ compensation law in today’s business world.
We are not unmindful of the arguments in favor of the “relative-nature” test advocated by commentators such as Larson, as well as the courts of certain states. See Id., § 45.10. However, this test has never been implemented by the legislature of this state, or by its courts. Instead, our Supreme Court has stated that 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). “The ultimate test ‘is the right of general control of the means and methods used by the person whose status is involved.’” DaSilva v. Danbury Publishing Co., 39 Conn. App. 653, 656 (1995), quoting Ross v. Post Publishing Co., 129 Conn. 564, 567 (1943).
Consistent with those decisions, this board has always applied the “right to control” test in reviewing commissioners’ determinations of a claimant’s employment status. See, e.g., Nelson v. Deb’s Inc., 2228 CRB-3-94-12 (decided June 20, 1996); Muniz v. Koteas, 13 Conn. Workers’ Comp. Rev. Op. 284, 287-88, 1720 CRB-4-93-5 (April 21, 1995); Hynd v. General Electric Co., 10 Conn. Workers’ Comp. Rev. Op. 77, 78, 1151 CRB-4-90-12 (April 3, 1992). It is evident from the trial commissioner’s opinion that he also applied that standard in his Finding of Dismissal. We believe that he was correct in doing so, and do not believe that the “right to control” test is categorically unfair to claimants. The “right to control” test has long been, and remains, the law of Connecticut, and the trial commissioner did not err in applying it below.
Turning to the claimant’s second argument, we must decide whether the trial commissioner’s findings, including those implicated by the denial of the Motion to Correct, adequately supported his dismissal of the claim under the “right to control” test. Employment status is patently a factual issue, see Muniz, supra, 287, and is subject to a significant level of deference on review. Nelson, supra. The commissioner has the authority to weigh the parties’ evidence and choose among conflicting testimony; this board will not disturb his decision unless it omits material and undisputed facts, or if it contains facts unsupported by the evidence. Id., citing Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 1859 CRB-5-93-9 (May 12, 1995). Similarly, legal conclusions must stand unless they are illegally or unreasonably drawn from the subordinate facts. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).
Most of the factual findings made by the commissioner were not challenged by the claimant afterward. These include findings that the decedent paid $425 per week for the right to drive a Metro Taxi cab; that he could work as many or as few hours as he wanted, and was not restricted to a particular service area; that both parties had the right to terminate the owner-operator agreement upon 48 hours notice; that the decedent was entitled to keep all of his fares, and paid property tax on the vehicle; that Metro Taxi never paid any wages or salary to the decedent, and did not supply him with an IRS form W-2 or 1099; that owner-operators could, but did not have to, use Metro Taxi’s dispatching service; that taxicabs could be used for an owner’s personal use; that an owner-operator could have his own personal customers, which the decedent did; and that the claimant had signed an agreement characterizing himself as an independent contractor. These findings offer sufficient support for the trial commissioner’s determination that the claimant was an independent contractor instead of an employee.
Some of the corrections offered by the claimant would have been more relevant to this case if the “relative-nature” test had been used, others were cumulative to existing findings, and a few were based more on opinion than undisputed fact. Even if they had all been granted by the commissioner, though, they still would not have compelled a contrary outcome in this case. Thus, there was no error in the commissioner’s denial of those changes and additions to the facts. See Webb, supra, 71. We therefore must affirm the trial commissioner’s decision.
Commissioners Roberta Smith Tracy and Amado J. Vargas concur.
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