Compensability: deviation from employment and "personal comfort" doctrine

Recently, Florida appellate courts issued rulings on two cases on issues related to deviation from employment and personal comfort. Essentially, these are nooks and crannies having to do with the issue of compensability. Injuries are compensable if they arise out of and in the course of employment. Sounds simple? Not so: Thousands of court challenges have occurred interpreting those few seemingly simple words. Is a worker covered while driving home from work? Is a worker covered while they take a break or go to lunch? Is a worker covered while running a personal errand during a business trip? Is a worker covered when injured at the company picnic? The answer to all these questions would be "maybe." Specific circumstances would dictate a yes or a no.

In the first Florida case, Galaida v. Autozone, Inc. 29 Fla. L. Weekly D2160d (Fla. 1st DCA Sept. 27, 2004), a worker was denied benefits for an injury sustained while on a smoke break in the company parking lot. Autozone allows employees to take smoke breaks, and the employee went to his car to get his cigarettes. When he opened the car door, his gun fell out of the car, discharged, and shot him in the foot. The claim for the resulting injury was denied not because it occurred during a break - that is an acceptable deviation for personal comfort - but because the employer had a policy against possessing firearms on company premises, and therefore, this incident was deemed a serious deviation from the course of employment.

The employee subsequently appealed the denial based on the doctrine of "personal comfort." The Appeals court upheld the denial, stating that:

The personal comfort doctrine incorporates a foreseeability element to the cause of injury. Thus, in Holly Hill Fruit Products 473 So. 2d 829, 830-1 (Fla. 1st DCA 1985), an employee who was injured while crossing a street to purchase cigarettes was held to have sustained a compensable injury because the 'trip was a foreseeable and non-prohibited refreshment break activity, and employer's authority over claimant was not significantly dissipated during the course of the trip.' Similarly, in B & B Cash Grocery Stores v. Wortman, 431 So. 2d 171, 174 (Fla. 1st DCA 1983), an employee injured while attending to his personal comfort by washing off in a river was held to have sustained a compensable injury because 'diving into the Alafia River was a momentary deviation without obvious danger, was impliedly tolerated, and was reasonably foreseeable.'

Being exposed to a firearm, however, is not a foreseeable consequence of an authorized cigarette break, especially when the possession of a firearm is strictly prohibited by the employer. Moreover, Galaida’s possession of a firearm, in violation of his employer’s policy, was not conducive to the employer’s interests. Thus, he should not benefit from the doctrine."

The second Florida case, Thompson v. Keller Foundations, Inc, 29 Fla. L. Weekly D2159a (Fla. 1st DCA Sept. 27, 2004.) dealt with a construction worker injured in an accident that occurred on a drive home from work after a stop in a bar to shoot pool with co-workers. This claim was denied, but the appeals court reversed the decision determining that the employee's injuries were indeed incidental to employment.

In this case, the worker was traveling for business. In most instances, travel to and from work is not compensable, but courts take a very inclusive approach in evaluating instances when an employee is traveling overnight for business. In reversing the lower court decision, the Appeals court stated:

"A traveling employee is deemed to be in the continuous conduct of his
employer's business including those times when he is not actually at work but is engaged in . . . normal and necessary activities. Thus, so long as a traveling employee’s injury arises out of a risk which is reasonably incidental to the conditions of employment, the injury will be compensable. Although the appellant may have been engaged in amusement activities immediately prior to the accident, the JCC did not make any findings sufficient to conclude that this traveling construction worker was not attending to a normal creature comfort and a reasonable necessity - driving to dinner - when his injuries were sustained."

There are a few lessons for employers that an employer can learn from these cases. One is to ensure that your organization has a policy about weapons. It makes good sense to have this be part of a more comprehensive "zero tolerance" policy regarding violence in general. Such a policy could address weapons, fighting, bullying, and other behaviors that risk the health and safety of your workers.

Second, be aware of the inclusive nature of overnight business travel in terms of compensability. Think twice about whether business travel is a necessity. It some instances, it may be the only way to get the work done; in others, there may be alternatives. For example, with advances in web technologies, an online conference might be a better solution from both a cost and a risk management perspective than an in-person meeting.