B & B Cash Grocery Stores v. Wortman

• Decision Date: 29 March 1983
• Docket Number: No. AP-190,AP-190
• Citation: 431 So.2d 171
• Court: Florida District Court of Appeals
• Parties: B & B CASH GROCERY STORES and Aetna Casualty & Surety Company, Appellants, v. John WORTMAN, Appellee.

Page 171

431 So.2d 171

B & B CASH GROCERY STORES and Aetna Casualty & Surety Company, Appellants, v. John WORTMAN, Appellee.

No. AP-190.

District Court of Appeal of Florida First District.

March 29, 1983.

Rehearing Denied June 2, 1983.

Jonathan L. Alpert, Fowler, White, Gillen, Boggs, Villareal & Banker, Tampa, for appellants.

Clifton A. Livingston, Stiles & Livingston, Tampa, for appellee.

LARRY G. SMITH, Judge.

The E/C appeal a workers' compensation award made pursuant to an order of the deputy commissioner determining that claimant's injury arose out of and was in the course and scope of his employment with the employer. We affirm.

The facts as disclosed by the evidence when viewed in the light most favorable to the prevailing party, as we must view it on appeal, are as follows: Claimant was a member of the employer's ground maintenance crew, which had the responsibility of cleaning and mowing the grounds of the employer's stores and the homes of the owners. Claimant and the other members of the crew drove from site to site in vehicles owned by the employer. The work was hot and dirty and facilities for washing off at the job sites were minimal. It was a regular practice for the boys to cool off by going swimming between jobs at public facilities and private homes. These swimming activities were known to the ground maintenance foreman and to the owners to some extent since the crew members sometimes swam in their pools with their permission.

On June 15, 1982, a very hot day, claimant and his two co-workers were travelling between job sites when they decided to stop at the home of one of the co-worker's parents for the purpose of cooling and washing off in the Alafia River. The home was about a mile and one-half from the direct route between stores. Once there, claimant dove into the water and struck his head on a rock causing a broken neck and quadriplegia.

In addition to the above recited findings by the deputy, the record reveals that claimant and his co-workers were entitled to a fifteen minute break in the morning and afternoon and that the boys had not taken an afternoon break when the accident occurred. Further, there was testimony from at least one of the boys that he worked better after rinsing off between jobs.

We agree with the deputy's conclusion, in finding the accident compensable, that the June 15, 1982 swimming excursion was an insubstantial deviation which was a direct result of the need to wash off caused by claimant's work conditions.

In Hill v. Gregg, Gibson & Gregg, Inc., 260 So.2d 193 (Fla.1972), the Supreme Court quoted with approval the following language in Fidelity & Casualty Co. of New York v. Moore, 143 Fla. 103, 196 So. 495, 496 (1940) '[For] an injury to arise out of and in the course of one's employment, there must be some causal connection between the injury and the employment or it must have had its origin in some risk incidental to or connected with the employment or that it flowed from it as a natural consequence. Another definition widely approved is that the injury must occur within the period of the employment, at a place where the employee may reasonably be, and while he is reasonably fulfilling the duties of his employment or engaged in doing something incidental to it.' 260 So.2d at 195.

We find that claimant's injury arose out of and in the course of his employment under definition . Evans v. Food Fair Stores, Inc., 313 So.2d 663 (Fla.1975). In Evans, the claimant was injured when he was struck by a fellow employee's car which he had helped start on the employer's parking lot. In finding the injury compensable the Supreme Court relied on the fact that claimant's injury occurred on company time, that it was a common practice for the employer's employees to help one another start or work on their cars, that claimant had the implied consent of his supervisor to assist his fellow employee during working hours, and that cooperation like this among employees inured to the morale of the working force and was incidentally beneficial to the employer.

Similarly, claimant's injury in this case occurred while he was on the employer's payroll, when he was engaged in a common practice of the boys on the ground maintenance crew, doing an activity which he had the implied consent of his supervisor to do, which activity increased the productivity of the employees and was incidentally beneficial to the employer.

The fact that claimant was attending to his personal comfort at the time of the injury does not defeat compensability. Baker v. Orange County Board of County Commissioners, 399 So.2d 400 (Fla. 1st DCA 1981); and Cunningham v. Scotty Home Builders, 9 FCR 1 (1973), cert. den. 307 So.2d 182 (Fla.1974). In Baker, the claimant's employment required his exposure to cold weather and with his employer's knowledge, the claimant began wearing battery operated socks. He was injured when the socks caused severe burns on the bottom of his feet, resulting in gangrene and requiring the amputation of a portion of one foot. This court concluded that the contributing employment conditions and circumstances rendered the claimant's injury one which arose out of his employment. In Cunningham, a case more factually similar to this one, the claimant was injured in an automobile accident while returning to his place of employment after going to a nearby 7-Eleven store to purchase a sandwich and drink. There, as here, the...