For an accident to be compensable (or covered) under the workers’ compensation system, it must happen in the course and scope of the employment. Generally, where the employment has fixed time and location requirements, accidents off the premises during lunch are not compensable. In other words, these accidents do not occur in the course and scope of the employment. In contrast, accidents occurring on premises during breaks or while the employee is attending to personal comfort are more likely to be considered compensable. (Caveat: an exception to compensability arises where the accident has happened during a substantial deviation from the break.)
Lunch Time Accidents
- On Employer’s Premises: Compensable. Doctor’s Business Service, Inc. v. Clark, 498 So.2d 659 (Fla. 1st DCA 1986). No compensability during substantial deviation. What constitutes a “substantial deviation” will be decided on a case-by-case basis.
- Away from Employer’s Premises: Not compensable. The same principles apply as in the “going and coming rule,” i.e., accidents while going and coming from work at the beginning and end of the work day.
Personal Comfort and Rest Breaks Generally, accidents that happen during these situations are compensable. A primary distinguishing reason for compensability is the duration of the event. The courts consider control by the employer over the employee to be an important factor. The duration of off-site lunch breaks loosen the grip of control enough to eliminate compensability, while the degree of control maintained during personal comfort and rest breaks, even those of short duration off premises, satisfies the course and scope requirement. Although the determination, of course, must be made on a case by case basis, a helpful standard was announced in City of Miami v. Dwight, 637 So.2d 981, 983 (Fla. 1st DCA 1994): “If the employer, in all the circumstances, including duration, shortness of off-premises distance, and limitations on off-premises activity during the interval can be deemed to have retained authority over the employee, the off-premises injury may be found to be within the course of employment.”
440.092(3): Created in 1990, this section requires express employer approval for a deviation to be compensable. It reads as follows:
DEVIATION FROM EMPLOYMENT.–An employee who is injured while deviating from the course of 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 save life or property.
However, where the deviation is for personal comfort, it appears that the standard may not have changed. In Bayfront Medical Center v. Harding, 653 So.2d 1140 (Fla 1st DCA 1995) a gentleman was struck by a car while walking to a convenience store to buy cigarettes. Even though the deviation was not expressly approved by the employer, the accident was found compensable.
Strong Claimant’s case: Lanham v. Department of Environmental Protection, 868 So.2d 561 (2004).
These cases must be scrutinized on a case by case basis. It seems that the smaller the deviation, both in terms of time and distance, and if the employer is benefited in some way (e.g., morale maintained and efficiency improved by an employee taking a short break to buy lunch food for the crew to eat on-site), the greater the prospects of an accident being compensable.
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