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Case name: Bernard v. Carlson Co., No. 2590-11-2 (Va. Ct. App. 07/17/12).

Ruling: The Virginia Court of Appeals held that a waiter was not entitled to benefits because his injury did not arise out of his employment.

Summary: A waiter for a restaurant often sampled new menu items so he could make recommendations to customers. While sampling a quesadilla, he choked. He never had problems swallowing food before. The process of dislodging the partially chewed bite of quesadilla damaged his esophagus. He filed a workers' compensation claim. The Virginia Court of Appeals held that he was not entitled to benefits because his injury did not arise out of his employment.

The waiter argued that the restaurant provided the quesadilla and encouraged him to eat it. The court said that the fact that he ate the quesadilla to be a better waiter only established that the injury occurred during the course of employment.

The actual risk doctrine excludes an injury that comes from a hazard to which a worker would have been equally exposed outside his employment. The court said that the quesadilla was not a hazard or a danger and that "it was simply a quesadilla." No evidence suggested that it had unusual properties or was made with defective ingredients. It could not be distinguished from any other quesadilla or food that required chewing before swallowing. The court found that the risk of the waiter choking on under-chewed food was a hazard to which he would have been equally exposed outside of his employment. Nothing about the quesadilla or his work environment increased the risk.

A dissenting judge disagreed with the restaurant's argument that the waiter's consumption of the quesadilla was a "common, human experience" and concluded that the sampling of the quesadilla was a causative hazard of his employment.

Read more at the WorkersComp Forum homepage.

September 17, 2012

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