Bayfront Medical Center v. Harding, 94-535

• Decision Date: 01 May 1995
• Docket Number: No. 94-535,94-535
• Citation: 653 So.2d 1140
• Parties: 20 Fla. L. Weekly D1103 BAYFRONT MEDICAL CENTER and Commercial Risk Management, Appellants, v. Peter HARDING, Appellee.
• Court: Florida District Court of Appeals

Page 1140

653 So.2d 1140

20 Fla. L. Weekly D1103

BAYFRONT MEDICAL CENTER and Commercial Risk Management, Appellants, v. Peter HARDING, Appellee.

No. 94-535.

District Court of Appeal of Florida,

First District.

May 1, 1995.

Nancy L. Cavey, St. Petersburg, for appellants.

Larry D. Goldstein, St. Petersburg, for appellee.

WENTWORTH, Senior Judge.

The Employer/Servicing Agent seek review of the judge of compensation claims' order awarding Claimant benefits for an accident that occurred on January 7, 1993. The E/SA defended on the basis of section 440.092(3), Florida Statutes (1991), asserting that the accident occurred during a deviation from Claimant's employment, and was therefore not compensable. The judge found the claim to be compensable by applying the personal comfort doctrine, and ruled that the doctrine had not been abrogated by section 440.092(3). We affirm.

Competent and substantial evidence supports the judge's finding that Claimant was injured in an off-premises automobile accident during working hours while he was, as alleged by the employer, "arguably going to [a convenience store] either for food or for cigarettes." (Claimant could recall nothing of the accident or the events immediately preceding the accident.) The evidence also supports the judge's finding that Claimant was not in an area where he was forbidden to be. The employer admitted that it did not sell cigarettes and that its employees were allowed to leave the premises during breaks. In addition, there was testimony to the effect that the convenience store was routinely frequented by employees seeking refreshment and cigarettes.

The judge concluded that the above facts did not show a degree of deviation from employment sufficient to justify a finding of non-compensability. We agree, and concur in the judge's opinion that the facts of the instant case are similar to those in Holly Hill Fruit Products, Inc. v. Krider, 473 So.2d 829 (Fla. 1st DCA 1985). In that case, we applied the personal comfort doctrine in affirming an order awarding benefits, where a claimant had left the employer's property to purchase cigarettes and was injured while returning. We held that "[a]n employer-condoned off-premises refreshment break of insubstantial duration is generally not such a deviation as to remove a claimant from the course and scope of the employment." Id. at 830. The E/SA contend, however, that the personal comfort doctrine has been effectively eliminated by section 440.092(3), which provides:

An employee who is injured while deviating from the course of his employment, including leaving the employer's premises, is not eligible for benefits unless such deviation is expressly approved by the employer, or unless such deviation or act is in response to an emergency and designed to...