State Compensation Insurance Fund v. Workmen's Compensation Appeals Board

BURKE, J.

Petitioner seeks annulment of an award of workmen’s compensation benefits to an employee of its insured. As will appear, we have concluded that contrary to petitioner’s contention the evidence supports the determination that the injury arose out of and was incurred in the course of the employment, and hence was compensable.

John R. Cardoza, then aged 23, entered the employment of Poso Canal Company on March 17, 1964, as a mechanic. On July 18, 1964, he and three fellow employees decided to swim in a nearby canal owned by another company. It was 105 degrees in the shade, some 109 or 110 degrees inside the shed where they were working, and about 3 o’clock in the afternoon. Cardoza dived into the water from the canal bank, struck his head, and suffered injuries for which the award here at issue was made.

Cardoza testified that Poso employees were accustomed to take coffee breaks or work breaks, as respites from their labors. Such breaks were taken on or off Poso premises, and for varying lengths of time. On the day of the accident, he had had no prior afternoon break. The work shift was scheduled to end at 4:30 p.m., from which it may be inferred that the four swimming employees intended to return to work. The canal in which they swam was 200 feet from the shed in which they were working, and 20 feet from Poso property. A road ran from the shed to the canal, and along the canal bank. Poso sometimes parked equipment on the bank of the canal and Cardoza and other employees on occasion worked on it there.

Cardoza had not previously gone swimming on company time or seen fellow employees do so, but they had discussed the subject two or three times and other employees had stated that they had gone swimming during working time. One of them, the son of the foreman, was in the group with which Cardoza went to swim on the day of the injury. Cardoza testified further that two or three weeks after he had started

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working for Poso the foreman had told him “That if we do go swimming on company time, to do

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not let no one see you doing it,” hut that he, Cardoza, had “been with employees, when you work and get all muddy, you do go in the canal and clean off, wash off the mud . . . .”