Szyska v. Norwalk Taxi, Inc.

The claimant was represented by Enrico Vaccaro, Esq., 1057 Broad Street, Bridgeport, CT 06604.

The respondent was represented by Charles Harris, Esq., Harris, Harris & Schmid, 11 Belden Avenue, Second Floor, Norwalk, CT 06850.

The Second Injury Fund was represented by Kenneth Kennedy, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the May 28, 2003 Finding and Award of the Commissioner acting for the Seventh District was heard August 27, 2004 before a Compensation Review Board panel consisting of Commissioners A. Thomas White, Jr., Ernie R. Walker and Howard H. Belkin.

OPINION

A. THOMAS WHITE, JR., COMMISSIONER. The respondent, Norwalk Taxi, Inc., has appealed from the May 28, 2003 Finding and Award of the Commissioner acting for the Seventh District. We affirm the decision of the trial commissioner.

The pertinent facts are as follows. The claimant was injured on November 9, 1998 as a result of a motor vehicle accident he sustained while operating a taxicab owned by the respondent, Norwalk Taxi, Inc. The respondent was not insured for Workers’ Compensation coverage on the date of injury. The issue in the formal proceeding below was whether the claimant was an employee or an independent contractor.

The trial commissioner found that the claimant was an employee. The trial commissioner determined that although the Department of Transportation regulated various aspects of taxicab operation “. . . the failure of a driver to measure up to any of these standards may well be reason for dismissal. In such an instance, it would be obvious that the termination of a driver would demonstrate just who has control.” Findings, ¶ H.

The determination of whether a claimant is an independent contractor or an employee is generally a factual determination made by the trial commissioner. Dupree v. Masters, 13 Conn. Workers’ Comp. Rev. Op. 316, 1791 CRB-7-93-7 (April 25, 1995), aff’d, 39 Conn. App. 929 (1995)(per curiam); Dacres v. Zeigler, 3401 CRB-7-96-8 (January 6, 1998). In this case the respondent has not filed a Motion to Correct the findings, therefore, on review we are limited to the factual findings of the trial commissioner. Mitchell v. J.B. Retail Inventory Specialists, 3458 CRB-2-96-10 (March 31, 1998); Dacres, supra. That being said, a review of the record reveals that the trial commissioner’s findings are supported by the evidence presented.

The respondent contends that the commissioner erred in failing to give any weight to the claimant’s admission that he claimed he was a sole proprietor on his income tax return. The trial commissioner is charged with determining the credibility of testimonial and documentary evidence. Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002); Persico v. Sikorsky Aircraft Corp., 4464 CRB-4-01-12 (November 15, 2002). A trial commissioner is free to omit a discussion of certain evidence which he finds to be unpersuasive and/or unimportant to the outcome of the case. Persico, supra. Here, the finding and award reveals that the trial commissioner did consider that on the claimant’s tax return the claimant reported that he “was a ‘driver,’ and that he was a sole proprietor.” Findings, ¶ 12. However, the trial commissioner also considered that “the Claimant is foreign born, without a great command of the English language.” Findings, ¶ 23. We find no error in the trial commissioner’s failure to discuss the claimant’s tax filing status as part of his ultimate findings. It is clear that he considered the evidence and weighed it in his final determination. Additionally, we note that tax filing strategies alone are not conclusive evidence of an employment relationship. See Kaliszewski v. Weathermaster Alsco Corporation, 148 Conn. 624 (1961); Phelan v. Soda Construction Co., 13 Conn. Workers’ Comp. Rev. Op. 53, 1583 CRB-3-92-12 (December 20, 1994). Furthermore, the respondent never made a Motion to Correct these findings.

The respondent also contends the trial commissioner erred in finding that the respondent’s right to terminate the claimant was sufficient to find an employment relationship despite the fact that the claimant’s conduct as a driver was dictated by Department of Transportation rules and regulations. Respondent’s Reason of Appeal. In Connecticut the determination of whether a claimant is an independent contractor or an employee is made using the “right to control” test. Stalker v. Derby, 4093 CRB-4-99-7 (August 10, 2000); Dasilva v. Danbury Publishing Co., 12 Conn. Workers’ Comp. Rev. Op. 360, 1647 CRB-7-93-2 (August 2, 1994), aff’d, 39 Conn. App. 653 (1995), cert. denied, 235 Conn. 936 (1995). We do not agree that the respondent loses the “right to control” its drivers merely because much of its business is regulated by the Department of Transportation.

In Hanson v. Transportation General, Inc., 245 Conn. 613, 624 (1998), the widow of a taxicab driver appealed the determination that the decedent was an independent contractor. The widow argued the fact that the decedent was required by his employer to comply with Department of Transportation regulations dealing with licenses, meters, fares, records, dispatch and safety would support a finding that the decedent was an employee despite a contract that labeled the decedent as an independent contractor. Here, the respondent uses Hanson to support the assertion that the prevalence of the Department of Transportation’s regulatory requirements in the respondent’s business do not support a finding of an employee-employer relationship. Respondent’s Brief. However, in Hanson the state’s Supreme Court stated, “We are not persuaded, therefore, that Metro’s [the taxicab company] requirement that owner-operators comply with government regulations definitively demonstrates an employer-employee relationship.” Id., 624. We believe that Hanson stands for the proposition that the fact that the taxicab business is a highly regulated industry neither supports or negates a finding of an employment relationship. If we were to agree with the respondent’s argument that the Department of Transportation regulates the industry so much that the respondent could never possibly meet the requirements of Connecticut’s “right to control” test, then we could never find a taxicab driver to be an employee. However, a review of our case law reveals that we have found taxicab drivers to be employees in some instances and independent contractors in others. See Muniz v. Koteas, 13 Conn. Workers’ Comp. Rev. Op. 284, 1720 CRB-4-93-5 (April 21, 1995); Hanson, supra.

Additionally, we note that the trial commissioner considered factors other than the respondent’s right to terminate the claimant when he made the determination that the claimant was an employee. A review of the commissioner’s findings reveals that he appropriately used the right to control test to analyze whether the claimant was an independent contractor or an employee. Findings, ¶ I. In Muniz, supra, this board found that the “actual operation of the respondent’s business” demonstrates the respondent’s right to control the claimant. Here the respondent furnished the actual taxicab to the claimant. Findings, ¶ 1. The claimant used the respondent’s dispatching system. Findings, ¶ 9. The trial commissioner did not believe the respondent’s testimony that it did not control the claimant’s hours, that the claimant was not required to use the respondent’s dispatching system, or that the claimant could refuse to pick up a customer if they chose. Findings, ¶ F. We see no error in the trial commissioner’s determination of this issue, especially in light of the fact that the respondent never moved to correct these findings.