                          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.)
________________________________


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
