State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: July 23, 2015 519854 

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In the Matter of the Claim of 

MAUREEN F. LAWLOR,

Respondent.

EXAMONE WORLD WIDE INC.,

Appellant.

COMMISSIONER OF LABOR,

Respondent.

(Claim No. 1.)

_______________________________

In the Matter of the Claim of

MICHELLE C. LEE,

Respondent.

EXAMONE WORLD WIDE INC., MEMORANDUM AND ORDER

Appellant.

COMMISSIONER OF LABOR,

Respondent.

(Claim No. 2.)

_______________________________

In the Matter of the Claim of

SHANNON M. TRAVIS,

Respondent.

EXAMONE WORLD WIDE INC.,

Appellant.

COMMISSIONER OF LABOR,

Respondent.

(Claim No. 3.)

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Calendar Date: June 2, 2015
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Before: Peters, P.J., Lahtinen, Garry and Lynch, JJ.

__________

DLA Piper LLP, New York City (Erin Carney D'Angelo of

counsel), for appellant.

Francis J. Smith, Albany, for Maureen F. Lawlor, Shannon M.

Travis and Michelle C. Lee, respondents.

__________

Lahtinen, J.

Appeals from six decisions of the Unemployment Insurance

Appeal Board, filed January 9, 2014, which ruled that ExamOne

World Wide Inc. is liable for unemployment insurance

contributions on remuneration paid to claimants and others

similarly situated.

Some basic medical information is typically required from

individuals when applying for certain types of insurance, such as

life insurance. ExamOne World Wide Inc. gathers and provides

such information to insurance companies. It does so by sending

mobile medical examiners to insurance applicants' homes or other

designated places, all of whom have sufficient licensing (such as

phlebotomists or nurses) to take blood and other samples as well

as obtain basic medical information. Claimants were all mobile

medical examiners for ExamOne and, upon ending their relationship

with ExamOne, each applied for unemployment insurance benefits. 

The Department of Labor determined that claimants were employees

entitled to benefits and, following a hearing, an Administrative

Law Judge sustained the initial determinations finding that

claimants, as well as others similarly situated, were each

employees and not, as urged by ExamOne, independent contractors. 

The Unemployment Insurance Appeal Board affirmed, and these

appeals by ExamOne ensued.
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"'Whether an employment relationship exists within the

meaning of the unemployment insurance law is a question of fact,

no one factor is determinative and the determination of the

appeal board, if supported by substantial evidence on the record

as a whole, is beyond further judicial review even though there

is evidence in the record that would have supported a contrary

conclusion'" (Matter of McAlevey [Agewell Physical Therapy &

Wellness, P.C.–Commissioner of Labor], 126 AD3d 1219, 1219-1220

[2015], quoting Matter of Concourse Ophthalmology Assocs.

[Roberts], 60 NY2d 734, 736 [1983]; accord Matter of Empire State

Towing & Recovery Assn., Inc. [Commissioner of Labor], 15 NY3d

433, 437 [2010]). "[W]here, as here, the work of medical

professionals is involved, the pertinent inquiry is whether the

purported employer retained overall control over the work

performed" (Matter of Mackey [Prometric Inc.–Commissioner of

Labor], 120 AD3d 1493, 1494 [2014]; see Matter of Salamanca

Nursing Home [Roberts], 68 NY2d 901, 903 [1986]).

In Matter of Scinta (ExamOne World Wide Inc.–Commissioner

of Labor) (113 AD3d 959 [2014]), we upheld the Board's decision

that a mobile medical examiner (as here) was an employee of

ExamOne. ExamOne has not attempted to distinguish that case in

this appeal. We note that there are some minor factual

differences between Scinta and these claimants and, moreover, the

facts established as to each of these separate claimants are not

totally uniform. Nonetheless, the essential factual findings

supporting the decision of an employment relationship in Scinta

are present as to each of these claimants. As in Scinta, the

issue is close and there is proof in the record supporting a

contrary conclusion as to claimants' employment status. But,

given the constraints of our review of a Board determination, we

affirm (compare Matter of Mackey [Prometric Inc.–Commissioner of

Labor], 120 AD3d at 1494-1495, and Matter of LaValley [West Firm,

PLLC-Commissioner of Labor], 120 AD3d 1498, 1499 [2014], with

Matter of Jhaveri [Stacy Blackman Consulting Inc.–Commissioner of

Labor], 127 AD3d 1391, 1392 [2015], and Matter of Jean-Pierre

[Queens Perioperative Med. Assoc. PLLC–Commissioner of Labor],

119 AD3d 1206, 1207-1208 [2014]). The remaining arguments, to the

extent that they are properly before us, have been considered and
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are unavailing.

Peters, P.J., Garry and Lynch, JJ., concur.

ORDERED that the decisions are affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court