The workers' comp case of the partially chewed quesadilla

The workers’ comp case of the partially chewed quesadilla

August 13, 2012 by Fred Hosier

Posted in: Bizarre Accident of the Week, In this week's e-newsletter, Injuries, new court decision, Special Report, Workers' comp

Imagine this: You provide food for employees and one chokes. Can he get workers’ comp?

Michael Bernard worked for a TGI Friday’s in Virginia as a waiter.

TGIF employees were often encouraged to try new items on the menu so they could recommend them to patrons.

This part of TGIF waiters’ jobs was apparently pretty important to the company. All servers are evaluated on the effectiveness of their recommendations to guests, and failure to do so can result in “counseling” by management. TGIF even employs “secret shoppers” to assess staff members’ performance, including recommendations of menu items.

One day at work, Bernard was sampling two new menu items: rice and a quesadilla. Bernard choked on a partially chewed bit of the quesadilla.

The quesadilla lodged in Bernard’s throat, and it was difficult to dislodge it. He was taken to an ER where he was diagnosed with a perforated esophagus and a collapsed lung. He underwent emergency surgery.

Afterward, he sought workers’ comp coverage for his injuries.

A workers’ comp commissioner denied him benefits, and on review the entire commission agreed.

Bernard took his case to the Court of Appeals of Virginia.

Is a quesadilla a hazard or danger?

As is the case in most states, the Virginia court had to determine whether this case satisfied two requirements: Did the injury (1) arise out of, and was it (2) in the course of Bernard’s employment.

The court said since TGIF provided Bernard with the quesadilla to sample, the injury did occur in the course of his employment.

However, the court questioned whether it arose out of his employment.

Virginia, like several other states, follows the “actual risk” doctrine which excludes an injury which the worker could have been equally exposed to outside of employment.

A common example: tripping on steps. If there’s nothing unusual about the employer’s steps, tripping on steps at work would not be compensable under Virginia law.

So that led to this question: Was there anything unusual about the TGIF quesadilla?

“Bernard’s quesadilla was neither a hazard nor a danger — it was simply a quesadilla,” the appeals court wrote. “No evidence suggested it had unusual properties or was made with defective ingredients. It could not be distinguished from any other quesadilla.”

So the majority on the court found choking on the partially chewed quesadilla did not arise out of Bernard’s employment, so he should not get workers’ comp benefits.

This means the next time your company brings in pizza for workers, if someone doesn’t chew their slice sufficiently and chokes, the employee can’t come after the company for workers’ comp benefits — at least in Virginia and other states with similar “actual risk” tests. That’s because the person could have choked in the same manner by eating pizza at home or in a restaurant.

Note: One judge wrote a dissenting opinion. The judge said sampling the quesadilla benefited the business because the server could recommend menu items to customers. “Claimant’s exposure to the quesadilla was occasioned by the nature of his employment, thus satisfying the actual risk test.” The dissenting judge said Bernard should receive workers’ comp benefits.

What do you think about this case? Do you agree with the majority or dissenting opinion? Let us now in the comments below.

(Bernard v. Carlson Cos. — TGIF, Court of Appeals of VA, No. 2590-11-2, 7/17/12)

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Tags: actual risk test, employee chokes, quesadilla, TGI Friday's, Workers' comp

Captain Safety

There should be a Toolbox Talk on proper chewing techniques. You should see the looks I get when I tell 20-30 year construction veterans how to climb a ladder.
John

He should receive benefits. It is part of his job duites. TGIF must re-address their part in this and do a safety analysis and it may have to state thoroughly chew your food before swallowing.
Dave

I have to agree with the ruling. If you go the other way with this, where does it end? Will we now have to do training for chewing at any company sponsered event. I’m not trying to be a smart alec here and I am all for keeping workers safe , but I can see it now before any company dinner or company picnic or provided lunch. ” Everyone your attention please, we are obligated to tell you that you must chew your food 22 times before swallowing or harm can come from swallowing to big of a piece. Also if you don’t chew 22 times and we count less we will write you up for not following company safety rules” There has to be common sense here or we will be paying out if someone doesn’t take in enough water in the day and they got dehydrated because we didn’t monitor and record how much fluid that person had in a work day.
DMac

Paduke – the argument you make is illogical. A company can and is required by regulation to control and monitor use of ladders in the workplace. There is a whole chapter in 1910 devoted to ladders for which companies are required to have programs. Show me where an employer must provide training on how to properly chew and swallow food, wipe their bottom, tie their shoes or brush their teeth. These are basic functions of life, and should not be covered under WC.
Willy

How do you know?
paduke

Let’s see! I’m working at home using a broken ladder which I didn’t notice and fall and break my hip. Since this could happen at home then while I’m at work I cannot claim WC because it could of happened at home. This is just another case of deluded workers compensation law.
He choked at work it doesn’t say wether he received the heimclih manuver at the restaurant which could have caused his injury. He was at work when the accident happened and he was required to sample the menu for his job. SIMPLE VERDICT!!!! HE GETS COMPENSATION!! That law is the most stupid law I have ever heard. Any accident that happens at work can happen at home. how is that a defense. Workers compensation is an insurance that was put in place to prevent workers from sewing companies out of business for negligence. I’m sure he didnt report to work with a perferated esophagus and collapsed lung. End of Story!!!!!
Sue Strong

Wished Mississippi was more like Virginia. I had to pay work comp to an associate who was eating chicken wings, free of charge in the breakroom, because his hand slipped while holding a wing and the bone went between his thumb and thumb nail. The nail had to be removed. I feel sorry that it happened but how in the heck is his eating habits (not holding the wing differently or not using utensils) my fault? Mississippi is all for the workers and very rarely for the employer.
VS

If you click on the link at the bottom of the article you can read the caselaw and precedents. There is a “Street-Risk exception” which apply to motor vehicle accidents. So driving down the street, obeying traffic laws and being in an accident is an exception.

This “actual risk” doctrine seems to be a basic seperation of “arising out of”, and “In the course of”, employment. This case is a perfect example. He swallowed a piece of food that was too big for his esaphagus. That happened “in the course of his employment”, but it wasn’t “arising out of his employment”. That doesn’t absolve him from not chewing his food.
A truck driver buys a TV and strains his back attempting to put it in his truck. That happened in the course of his employment but it did not arise out of his employment. That could have saved my company a lot of money back in the 90′s.
http://www.floridainjury-attorney.com Greg

As an attorney who focuses on workers’ comp cases , this site has provided me with a way to provide/share interesting content via my social media pages. Safety News Alert is always presenting the information in a manner that is actually attention-getting. Interesting articles, interesting cases and good writing! Thanks again for sharing. My site is http://www.floridainjury-attorney.com
Ed H

Let me start by saying that I detest the entitlement generation. That being said, the “Actual Risk” doctrine disturbs me. If an employee very often drives a car during the day on Main street (outside of work hours), does that mean if they are involved in a car accident during the day on Main street while working, they will not receive WC benefits?
DMac

Eating something at work – workers comp – Really? Give me a break. ANYONE who sides with Workers Comp on this ought to have his/her head examined….
Leon Z

What are the other “at risk” states?

The article mentioned an employee tripping on a stair as basically their own risk and the result of their own action/inaction. We had an employee twist his ankle steping up into his lift truck while not paying attention and talking to another employee. and he’s been off for three months collecting workers’ comp.
We are in New Jersey.
VS

I do like that “Actual Risk” Doctrine. The company can work towards eliminating or mitigating risks, but it’s the employee’s behavior that we cannot control. For example, we spend a lot of money on maintaining our fleet of trucks. We have rules about seatbelts and safety equipment, we obtain MVR’s on our employees and we conduct state certified Defensive Driving right on site. Then an employee closes the door of a company truck on his own hand fracturing a finger. I have to investigate, find the root causes and write our “path forward” for the client. The large sign in front of the plant goes to “0″ days without a recordable injury. I have to give training to several hundred employees on hazard assessment. Stickers will be made to put by the door handles reminding workers to keep their hands out of the line of fire. In the end it still gets entered as a vehicle incident.
In this Quesadilla article. My initial thoughts are that he could have prevented this by taking smaller bites and chewing thoroughly. Does an employer really need to develop a Task Safety Analysis to address this hazard?
http://SafetyNewsAlert Jim

Based on the information provided the court gave the best ruling within Virginia’s at risk doctrine. I like the doctrine it makes compensibility ruling objective rather than subjective. Although the incident ocurred at work there was no greater risk. If an employee selling a vacuum didn’t know how to use it or what the features are would you buy it from him. TGIF applies the same logic if you don’t know your product how do you sell it (by sampling, sampling is a small portion for the taste). As far as Joe goes if I had a food allergy then I wouldn’t be working in a restraunt/food indusrty.
Willy

Whatever Zach L, Whether all the facts are there or not, this sight is only asking opinions on the article posted. If not all the evidence is stated and we have to make semi-educated guesses so be it. It’s not about who’s opinion is right or wrong.
http://www.kanpak.us Zach L

Tedbean took the words right out of my mouth. There are most likely thousands of pages in evidence, testimony, & who knows how many coworker’s depositions related specific. Maybe there’s not a “Magic bullet” that clarifies the whole case, but added together the weight shifts appropriately one way/other. The fact is, we can make all the suppositions we want. But they are only semi-educated guesses without all supporting evidence.
TedBean

We don’t know if the waiter regularly chewed his food completely or only partially or if he was being rushed in order to get back to work, or if he swallowed accidentally while talking with colleages. The “actual risk” doctrine is stupid and comes solely out of a desire to indemnify businesses against liability by shifting the cost of workplace accidents onto the workers. There is nothing here that suggests misconduct. Would the waiter have been eating a quesadilla if he’d stayed at home? Probably not. Would he have been more at ease and less likely choke? Would the hypotheitical person who fell have tripped on that particular set of steps if he had not been working? Would he have been equally distracted, or equally hurried, or even wearing the same shoes? There are no equivalent situations–period.
Willy

Tell me JT, Where in the article does it state he was given a rigorous heimlich maneuver or any kind of heimlich maneuver and that was the cause of his injuries. It states they noticed those injuries when he went to the ER, not that they were caused by anything. Speculation is abound.
Wiley1

While I feel for the waiter, unless the object was unable to be chewed to a smaller portion (ie bone hard tissue), why should the restaraunt be liable. There has to be some personal responsibilty on the waiter to simply chew his food. We cannot continue to reward people for their deficiencies in being responsible for their own actions. Again, I hope the waiter recovers fully, but I agree with the decision.
JT – HSE Tech

I totally agree with the one dissenting job, it is unfortunate that the employee choked on the partially eaten quesadilla … and even more unfortunate that he suffered a collapsed lung and perforated esophagus from a rigorous heimlich maneuver … HOWEVER, eating new menu items is indeed part of his normal work duties so he should have received workmen’s compensation for the injuries sustained.
Jason B

The story said waitstaff was encouraged to sample foods, not required.

I agree with the ruling. Now watch, we will have to start documenting “how to chew food before swallowing” for our food service workers.
Joe

I agree with the dissenting judge. What if this employee had a food allergy and the manager told the employee to eat shell fish or he would be written up for not sampling. If he had an allergic reaction to the food it could kill him. I think TGIF policy is wrong. No one should be pressured in to eating anything. Next thing you know employees will be saying they are obese because they pressure you in to eating there food. TGIF should change the policy. I don’t think I will ever eat at a TGIF again.
Mark

I agree with the court’s decision. This is a great example of how one’s behavior (not fully chewing his food) can lead to an entitlement mentality. I screwed up, therefore you owe me… Balderdash!!!

As a side note, where can I get a job that part of my duties are to eat food… how wonderful is that?
mike

The premise of the Virginia law is excluding an injury which the worker could have been equally exposed to outside of employment. Even though waiters are encouraged/expected to try menu items, he was at no more risk eating at work than at home or at another restaurant. Not chewing his food would put him at equal increased risk of choking anywhere he ate. The bottom line is the “actual risk” doctrine. Wish more states had the actual risk doctrine and not the “just because you’re at work” doctrine.
Wally

I believe what we have here is a clear case for more stringent regulation of all quesadillas and there should be sufficient warnings on the menus and on the plate (in English and Spanish) warning the consumer that quesadillas are known to puncture the esophagus and collapse lungs. Plus, there should be an Executive Order from the White House that imposes a pre-paid fine for all quesadilla-serving restaurants (The horrible evil-corporate types that sell high-sodium, high-calorie dishes).
Darlene

I agree with the courts decision. It is not your employers fault that you fail to chew your food properly and this accident could have happened anywhere.
Lori

Does anyone know where to find a list of states that follow the “actual risk” doctrine?
Ed

I would have to agree with the dissenting judge in this case. Unlike bringing pizza in as a reward or cooking burgers for your staff to thank them for working a holiday, waiters at TGIF are required to sample the food so they can make recommendations. Therefore it is a requirement of the job, one that if he failed to follow, could result in his termination. Since it was a part of his employment requirements and not optional, he should have been awarded workers comp IMO. I agree with the others that the collapsed lung and perforated esphogas were not “pre-existing” and more likely the results of trying to dislodge the stuck food.
Willy

Sorry all about the lung thing. It’s just that I know someone who had a lung removed because of cancer and he still lives a normal life. Again I apologize.
http://www.alouettecheese.com Fred

The injure could not have come from the Quesadilla. I agree with the ruling.
How sharp could a Quesadilla be to perforated the esophagus. You can have a collapsed lung and still be walking around, my sister had one, you know you have a problem and are looking for a way to get workers comp to pay for your medical issue.
Jes

I agree with the one judge because it was required by his employer and was being judge by his employer to do so. They made it part of his job.
Sue, Occup. Health Nurse

Willy is mistaken. Those injuries are emergency situations and could not have occurred previous to the incident. The injuries are complications of having one’s windpipe blocked.
The judge was correct to say that it benefited the company to have the employees sample the products. I believe the injuries are compensable under the law.
TB

Those are pretty severe injuries and I don’t think he would have been sitting around eating food if he had them “before”!
Daniel

I disagree with the majority. The food sampling was a requirement of the job, he may never have eaten a quesadilla if not part of his performance expectations. The perforated esophagus and collapsed lung could easily have occurred during efforts to dislodge the food using the heimlich maneuver. Willy – a collapsed lung is fairly debilitating and I doubt seriously this individual would have reported to work with that serious a condition.
Connie

I was always taught to chew my food before I swallowed. Agree with the majority opinion.
Willy

I agree with the majority only because I do not think a collapsed lung and perforated esophagus could have happened by having food stuck in his throat. I personally think those things happened before hand and he knew nothing of it. I like the Virginia “actual risk” doctrine and I think all states should have it.