IN RE: the Claim of Kenneth HALL (1998)

Supreme Court, Appellate Division, Third Department, New York.

IN RE: the Claim of Kenneth HALL, Appellant, v. ALL SEASONS SERVICES INC. et al., Respondents. Workers' Compensation Board, Respondent.

Decided: November 05, 1998

Before MIKOLL, J.P., and MERCURE, CREW, WHITE and CARPINELLO, JJ.

Ouimette, Goldstein & Andrews (Louis M. Dauerer, of counsel), Poughkeepsie, for appellant. Ryan, Roach & Ryan (Jill M. Johnson, of counsel), Kingston, for All Seasons Services Inc. and another, respondents.

Appeal from a decision of the Workers' Compensation Board, filed August 26, 1997, which ruled that claimant did not sustain an accidental injury in the course of his employment and denied his claim for workers' compensation benefits.

Claimant was employed on weekdays and Sundays as a vending route driver. Although the employer specifically instructed claimant not to work on Saturdays and did not compensate him for Saturday overtime, claimant nonetheless reported to work on Saturday, December 16, 1995 and was injured during a mugging that occurred while he was attempting to enter a company truck in the employer's parking lot. Inasmuch as claimant was working on his personal time when he was injured, substantial evidence supports the decision of the Workers' Compensation Board that claimant was not entitled to benefits because his injury did not arise out of and in the course of his employment. Accordingly, the Board's decision is affirmed.

ORDERED that the decision is affirmed, without costs.

MEMORANDUM DECISION.

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