State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: July 23, 2015 519638 

________________________________

In the Matter of the Claim of

STACEY A. DICKSON,

Respondent.

EXAMONE WORLD WIDE INC., MEMORANDUM AND ORDER

Appellant.

COMMISSIONER OF LABOR,

Respondent.

________________________________

Calendar Date: June 2, 2015

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 Stacey A. Dickson,

respondent.

__________

Lahtinen, J.

Appeals from three decisions of the Unemployment Insurance

Appeal Board, filed November 20, 2013, which ruled, among other

things, that ExamOne World Wide Inc. is liable for unemployment

insurance contributions on remuneration paid to claimant and

others similarly situated.

Claimant was a mobile medical examiner for ExamOne World

Wide Inc., and the Unemployment Insurance Appeal Board upheld a

decision that she was an employee and not, as argued by ExamOne,

an independent contractor. For the reasons set forth in Matter

of Lawlor (ExamOne World Wide Inc.–Commissioner of Labor) (___
-2- 519638 

AD3d ___ [decided herewith]), as well as Matter of Scinta

(ExamOne World Wide Inc.–Commissioner of Labor) (113 AD3d 959

[2014]), we are unpersuaded by ExamOne's argument that the

Board's decisions must be reversed.

ExamOne raises the additional argument that claimant herein

did not have sufficient earnings after voluntarily leaving her

job to qualify for benefits. Under the statute in effect at the

relevant time, a person who voluntarily left employment without

good cause did not qualify for unemployment benefits until that

person had "subsequently worked in employment and earned

remuneration at least equal to five times his or her weekly

benefit rate" (Labor Law former § 593 [1] [a]).1 Determining

whether a claimant had sufficient subsequent earnings "is a

factual question for the Board to resolve and its decision will

not be disturbed if supported by substantial evidence" (Matter of

Santiago [Commissioner of Labor], 63 AD3d 1357, 1357 [2009]). 

Claimant's benefit rate was $217 and, thus, she was required to

earn $1,085 after voluntarily leaving ExamOne before being

eligible for benefits. ExamOne failed to establish the specific

date in January 2012 that claimant's relationship with it

terminated, but the proof put such date between January 12, 2012

and January 26, 2012. During the first quarter of 2012 – a time

period that included when claimant was working for ExamOne as

well as subsequent thereto – claimant earned $3,174.92 from

another employer, and it is uncontested that $855.85 of such

amount was earned in February 2012. Therefore, she needed to

earn only an additional $229.15 during the pertinent base period

after leaving ExamOne to reach the $1,085 necessary for

eligibility. The Board determined that, of the remaining

$2,319.07 earned from the other employer (i.e., $3,174.92 total

earned minus $855.85 accounted for February 2012), at least

$229.15 of it was earned after claimant left ExamOne and during

the pertinent period. Inasmuch as this factual determination is

supported by substantial evidence, we affirm. The remaining

arguments are unpersuasive.

1 The statute now requires subsequent earnings of at least

10 times the weekly benefit rate (see Labor Law § 593 [1] [a], as

amended by L 2013, ch 57).
-3- 519638 

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

ORDERED that the decisions are affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court