Safety and OSHA News

She got food poisoning in the company break room; does she get workers’ comp?

Does every employee injury that occurs on your company’s property entitle the injured person to workers’ comp? What about when employees are eating their lunch?

Lindamarie Serraino worked as a medical technologist for Defiance Clinic in Ohio.

To improve the work environment, the Clinic started a lunch program. It periodically invited local caterers to sell food to employees in the Clinic’s break room.

Participation in the lunch program was optional. Employees paid full price for the food — there was no discount to Clinic workers. The Clinic didn’t receive any portion of the caterers’ sales.

During her day-shift job, Serraino had a one-hour, unpaid lunch break.

In the first full week of August 2005, Serraino ate catered lunches on several days. On Saturday of that week, Serraino became ill and sought medical treatment. She was diagnosed with salmonella poisoning.

The County Health Department investigated and found five other confirmed cases of salmonella poisoning. Each person had eaten one or more catered lunches served at the Clinic during the previous week. However, the Health Department was unable to conclusively identify the source of the salmonella, even though its investigation centered around Classic Catering by Kim Brown.

Serraino applied for workers’ comp benefits for the salmonella poisoning.

Five hearings later …

A hearing officer denied Serraino’s claim.

On appeal, so did another hearing officer, the state Industrial Commission and the state Court of Common Pleas.

The fifth hearing: the Court of Appeals of Ohio.

The first test by the appeals court: Did Serraino’s injury “arise out of” her employment.

Serraino argued:

  • Her injury occurred on Clinic property
  • The Clinic benefited from her presence at the scene of her injury because she was receiving training that week, and eating lunch on site allowed her to return to training faster
  • Her doctor said she contracted the salmonella poisoning by eating food prepared by Classic Catering, despite the Health Department’s inability to say so conclusively, and
  • The Clinic had control over the scene of the injury.

To counter Serraino, the Clinic said the caterers did serve the food on Clinic property. But the Clinic didn’t have control over the caterers’ activities, including food preparation.

The appeals court noted Serraino could have eaten the food purchased from the caterer anywhere. It also agreed with the Clinic that it didn’t have control over the food preparation activities that apparently gave the worker food poisoning.

For that reason, the court ruled that her poisoning didn’t arise out of her employment. The court awarded summary judgment to the Clinic. The case was dismissed.

Note: The court agreed Serraino staying on site to eat her lunch so she could return to training earlier was a benefit to the Clinic.

Although we don’t know for sure, it appears this case could have had a different outcome had the Clinic employed the food preparers. That way, the Clinic would have maintained control over them, and it would have lost that part of the argument.

What do you think of the court’s decision? Let us know in the comments below.

(Serraino v. Fauster-Cameron dba Defiance Clinic, Court of Appeals of Ohio, No. 4-12-11, 2/4/13)

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Comments

  1. Serraino believed the catering service was responsible for her injury, therefore, she should have (considered) suing the catering service not her employer. The company simply tried to give their employees more options regarding their lunch break – “no good deed will go unpunished”.

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