Jean Fluet, Inc. v. Harrison

• Decision Date: 29 March 1995
• Docket Number: No. 94-4173,94-4173
• Parties: 20 Fla. L. Weekly D793 JEAN FLUET, INC. and Continental Loss Adjusting Service, Appellants, v. Donald HARRISON, Appellee.
• Court: Florida District Court of Appeals

Page 1209

652 So.2d 1209

20 Fla. L. Weekly D793

JEAN FLUET, INC. and Continental Loss Adjusting Service, Appellants, v. Donald HARRISON, Appellee.

No. 94-4173.

District Court of Appeal of Florida,

First District.

March 29, 1995.

Nancy A. Lauten and Kristine A. Ebbesmier of Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., Tampa, for appellants.

Michael E. Sweeting of Paderewski & Sweeting, P.A., Sarasota, for appellee.

WENTWORTH, Senior Judge.

This is an appeal from an interlocutory workers' compensation order determining compensability of an injury. Fla.R.Work.Comp.P. 4.160(b)(3). We affirm, finding no substantial deviation from employment.

Claimant Donald Harrison was employed as a carpenter's helper on September 18, 1990, when he was involved in an incident that resulted in injury to his right eye. The accident was reported as having occurred as a result of a nail that was being hammered and allegedly ricocheted and hit claimant in the right eye. The appellant employer, Jean Fluet, Inc., later learned that the accident occurred as a result of a "nail tossing" incident between claimant and his supervisor, Rodney Meyers. The facts were as stated in the order:

6. The claimant was sheeting a roof early in the morning on September 18, 1990. The claimant testified that he was "trying to get everyone going". The claimant ran up a roof truss and tossed a nail in the direction of the foreman. The nail struck his foreman after bouncing off the floor either in his leg or in his back, depending on the testimony of the witness. The supervisor then turned and tossed the nail in the direction of the claimant who, upon looking in the direction of the supervisor, was struck in the right eye with the nail and suffered a significant injury to his eye. The testimony of all concerned indicates that this activity lasted for only a few seconds.

7. The claimant initially reported the injury as a result of him striking a nail with his hammer and the nail bouncing up and hitting his eye. Claimant testified that he was fearful that the Worker's Compensation would not cover his injury and was afraid that his supervisor Rodney Meyers, would get fired for the nail throwing incident. Subsequently he told his employer that the nail had been thrown by his supervisor Rodney Meyers and struck him in the eye.

8. It is clear from the testimony of all concerned that Mr. Fluet, the owner/employer, did not condone such activities on the job site, however there was no testimony that he ever told this claimant that the nail throwing was not tolerated on the job site. All witnesses testified that nail throwing was something which "just occurred" in construction, not regularly, but it does happen.

When the employer eventually learned in April 1991 the truth of how claimant injured his eye, he fired the supervisor. The E/C initially paid workers' compensation benefits to claimant, but when the employer was informed that the incident did not occur as reported by the claimant, benefits were terminated.

Claimant subsequently filed a claim for additional benefits which was defended on the grounds that no accident arising out of and in the course of employment had occurred, but that claimant's injuries had resulted instead from horseplay, precluding compensability. At the October 31, 1994, hearing, the parties agreed to bifurcate the hearing so that the only issue for determination was the compensability of the industrial accident. After hearing testimony and reviewing the evidence, the judge of compensation claims (JCC) entered an order concluding that claimant was entitled to benefits. Although she agreed with the E/C that the incident constituted horseplay, she nonetheless found that the deviation was momentary and did not amount to an abandonment of claimant's employment duties. The JCC rejected the E/C's argument that claimant had been an aggressor in the incident, and instead found that he did not throw the nail at his supervisor in an attempt to injure him. This interlocutory appeal followed.

The JCC's conclusion, predicated as it is on competent and substantial evidence that was essentially undisputed, is consistent with the rule of law in such cases as Boyd v. Florida Mattress Factory, Inc., 128 So.2d 881 (Fla.1961) and Times Publishing Co. v. Walters, 382 So.2d 720 (Fla. 1st DCA 1980). Those decisions make clear the point that the extent of deviation is the key inquiry. The conclusion that the deviation in this case did not amount to a wholesale abandonment of claimant's work is consistent with Florida law as enunciated in the cited cases. ¹ We recognize that other jurisdictions have produced irreconcilable decisions on seemingly identical fact patterns: 1A Larson, The Law of Worker's Compensation Sec. 23.64, pp. 5-218, 219 (1994). However, the extent of deviation is a primary consideration in Florida, and the JCC in this case properly ruled based on the evidence that the deviation was insubstantial.

The E/C, by a footnote in their brief, argue the applicability of section 440.092(3), Florida Statutes (Supp.1990), which precludes compensability for accidents that occur while an employee is "deviating from the course of his employment," except in limited circumstances. We accord the term "deviating" as used in the statute the same meaning that it has been given in the cases, including the meaning it has been given in the...