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)