| Matter of Bond v Suffolk Transp. Serv. |
| 2009 NY Slip Op 09140 [68 AD3d 1341] |
| December 10, 2009 |
| Appellate Division, Third Department |
| In the Matter of Catherine Ann Bond, Appellant, v SuffolkTransportation Service et al., Respondents. Workers' Compensation Board,Respondent. |
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Spain, J. Appeal from a decision of the Workers' Compensation Board, filed February 2,2009, which ruled that claimant did not sustain an accidental injury in the course of heremployment and denied her claim for workers' compensation benefits.
Claimant, a school bus driver, was injured when she slipped and fell exiting a bus outside ofher home and sought workers' compensation benefits. A Workers' Compensation Law Judgedetermined that claimant's injury had not been sustained in the course of her employment and,upon review, the Workers' Compensation Board agreed. Claimant now appeals.
We affirm. In order for an accident to be compensable, it must have arisen out of and in thecourse of employment (see Workers' Compensation Law § 2 [7]; § 10; Matter of Nkrumah v Thomas, 61AD3d 1325, 1327 [2009]). The record here shows that claimant had a split work shiftconsisting of [*2]morning and afternoon bus runs, with severalhours off duty in between. During what claimant referred to as her "break" period, she waspermitted to drive the bus to her home, where her fall occurred. No evidence was produced toshow that the employer retained any control or authority over claimant in the period between thebus runs or that her use of the bus had any relationship to her employment or benefit to heremployer. Claimant now attempts to rely upon the presumption of compensability contained inWorkers' Compensation Law § 21 (1) to establish such a relationship, but that statute doesnot wholly relieve her of the burden of demonstrating that the accident occurred in the course of,and arose out of, her employment (see Matter of Malacarne v City of Yonkers ParkingAuth., 41 NY2d 189, 193 [1976]; Matter of Hansen v Syracuse Home Assn., 55 AD3d 1167, 1168[2008]). Accordingly, we find that the Board's conclusion that claimant's injury did not arise inthe course of her employment is supported by substantial evidence (see e.g. Matter of Smithv City of Rochester, 255 AD2d 863 [1998]; Matter of Nattier v Elmsford Transp.Co., 81 AD2d 721 [1981]; Matter of Bennerson v Checker Garage Serv. Corp., 54AD2d 1042, 1042-1043 [1976]; cf.Matter of McFarland v Lindy's Taxi, Inc., 49 AD3d 1111, 1112 [2008]).
Claimant did not raise her remaining contention before the Workers' Compensation LawJudge or the Board and it is accordingly unpreserved for our review (see Matter of Neville v Magazine Distribs.,Inc., 61 AD3d 1165, 1166 [2009], lv denied 12 NY3d 712 [2009]).
Mercure, J.P., Rose, Kane and Garry, JJ., concur. Ordered that the decision is affirmed,without costs.