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Las Vegas Workers’ Compensation Attorney Andre Lagomarsino – Appeals Court Rules Choking on a Quesadilla Does Not Qualify for Workers’ Compensation Benefits

An appeals court has held that a waiter who was “injured” while attempting to swallow a “piece of quesadilla that was too big for his esophagus” is not eligible for workers’ compensation benefits.

Michael Bernard was a host and waiter at a TGI Friday restaurant. As part of his duties, he was required to make food recommendations to customers. As customary in many restaurants, TGI Friday required its staff to attend food tastings for menu items. While attendance at the food tastings was mandatory and conducted while the staff was on-the-clock, no staff member was required to eat anything they did not want to eat and was not disciplined if he or she chose not to sample a menu item.

In January 2010, while sampling a quesadilla, Bernard began to choke. The piece of quesadilla lodged in his throat, perforated his esophagus, and caused a collapsed lung. Bernard underwent emergency surgery at a local hospital. Thereafter he filed a workers’ compensation claim arguing that his injuries occurred in the course of his employment and arose out of an actual risk of his employment. Bernard made no allegation that the quesadilla was unusual or defective in any way or that he had previously had problems swallowing food, thereby putting TGIF Friday on notice that his injury was foreseeable. Nor did he argue that the piece of quesadilla in some way triggered his Crohn’s disease, which he had suffered with since childhood.

The Virginia Workers’ Compensation Commission denied the claim holding that though Bernard’s injury occurred in the course of his employment, his failure to fully chew the quesadilla did not arise out of his employment. “In cases of injury due to food provided by the employer, we have found compensable injuries only when there was something unusual or abnormal about the food, i.e. it was spicy, hot in temperature, or contained a hard object. Here, there was no problem documented with the quesadilla which became stuck in the claimant’s throat and caused his injury. The claimant did not assert that it was something that he should not eat because of his medical condition. The claimant would have been equally exposed to any risk connected with eating an ordinary quesadilla had he eaten it apart from his employment.”

Bernard appealed.

The Virginia Court of Appeals held that the Workers’ Compensation Act applies when the claimant “satisfies both the ‘arising out of’ and the ‘in the course of’ prongs of the statutory requirements of compensability.” Butler v. S. States Coop., Inc., 270 Va. 459, 465, 620 S.E.2d 768, 772 (2005). “The concepts ‘arising out of’ and ‘in the course of’ employment are not synonymous and both conditions must be proved before compensation will be awarded.” Clifton v. Clifton Cable Contracting, LLC, 54 Va.App. 532, 539, 680 S.E.2d 348, 352 (2009).

While TGIF provided Bernard with the quesadilla, while he was working, and encouraged him to eat it–thus his injury occurred in the course of his employment. We disagree, however, that his failure to fully chew the quesadilla and his resulting injury arose out of his employment. An employee who trips while walking up a staircase at work cannot recover compensation unless something about the steps (or some other condition of the workplace) presented a hazard or danger peculiar to the worksite. Even though the employer provided the steps, and encouraged the employee to use them, if there is “nothing unusual about or wrong with the steps,” an employee who trips over them cannot show the accident “arose out of” the employment. Johnson, 237 Va. at 185-86, 376 S.E.2d at 76.

Denial of workers’ compensation benefits upheld. Bernard V. Carlson Companies TGIF, Record No. 2590-11-2, July 17, 2012.

The Las Vegas law office of Lagomarsino Law did not represent anyone involved in any cases that may be referenced above. This commentary is for educational purposes. If you would like to be represented by an attorney in our Las Vegas office, contact our office for a free confidential case review and receive a response within 24 hours. Call Toll Free 866-414-0400.