IN RE: the Claim of Jerry SUN (2006)

Appeal from a decision of the Unemployment Insurance Appeal Board, filed October 6, 2004, which, inter alia, ruled that Anuthep Benja-Athon M.D., P.C. was liable for unemployment insurance contributions on remuneration paid to claimant and others similarly situated.

Claimant worked as a licensed massage therapist for Anuthep Benja-Athon M.D., P.C. (hereinafter Benja-Athon), a medical practice specializing in rehabilitation and pain management.   When his employment ended, he applied for unemployment insurance benefits.   Following various proceedings, the Unemployment Insurance Appeal Board ruled that claimant was eligible to receive benefits and that Benja-Athon, as claimant's employer, was liable for unemployment insurance contributions on remuneration paid to claimant and others similarly situated.   Benja-Athon appeals.

Contrary to Benja-Athon's assertion, substantial evidence supports the Board's finding that an employment relationship existed between it and claimant.   Claimant testified that Benja-Athon established claimant's hourly compensation, referred patients to claimant according to a predetermined work schedule based on claimant's availability, provided the work area, table, linens and creams needed by claimant to perform his services, paid claimant every two weeks for the hours he actually worked and even instructed claimant on the manner in which to perform his services based upon a patient's particular ailment.   Notwithstanding the somewhat conflicting testimony given by a representative of Benja-Athon or the evidence that would support a contrary result, we find that Benja-Athon exercised a sufficient degree of control over important aspects of claimant's work to be considered his employer (see e.g. Matter of Swinton [New York Therapy Assoc.-Commissioner of Labor], 257 A.D.2d 822, 684 N.Y.S.2d 11 [1999];  Matter of Jordan Rehabilitation Serv. [Sweeney], 240 A.D.2d 988, 659 N.Y.S.2d 554 [1997] ).

ORDERED that the decision is affirmed, with costs to claimant.