The Quesadilla Caper

The Virginia Court of Appeal was called upon to resolve a dispute between the workers’ compensation commission and Michael Bernard, a restaurant waiter who attempted to swallow a piece of quesadilla that was too big for his esophagus. The commission found Bernard’s injury occurred in the course of his employment but not as a result of an actual risk of employment. In Michael Bernard v. Carlson Companies — TGIF and, No. 2590-11-2 (Va.App. 07/17/2012) the Court of Appeal resolved the dispute.

We view the evidence on appeal in the light most favorable to Bernard’s employer, the prevailing party before the commission. In 2010, Bernard worked as a host and waiter at a TGI Friday’s (TGIF) restaurant. When new food selections came out, he and other employees often sampled the food so they could make recommendations to customers. The commission found Bernard “was not required to taste anything” and “did not anticipate being disciplined” if he chose not to sample the food. In January 2010, Bernard sampled a quesadilla. Though he had never before had problems swallowing food, Bernard choked on a partially chewed bite of the quesadilla. The strenuous process of dislodging it damaged his esophagus.

Bernard filed a worker’s compensation claim, contending the injury occurred in the course of his employment and arose out of an actual risk of his employment. He did not allege the quesadilla was unusual or defective in any way. Bernard has had Crohn’s disease since childhood. But he did not claim, nor did the evidence prove, that some peculiar quality of the quesadilla triggered his underlying Crohn’s disease.

The deputy commissioner denied the claim, finding the injury occurred in the course of the employment but did not arise out of an actual risk of the employment.  The commission held: “[W]e find that the claimant’s injury did not arise out of a risk 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.”

On appeal Bernard conceded he “attempted to swallow a piece of quesadilla that was too big for his esophagus.”

BASIC ARISING-OUT-OF PRINCIPLES

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. 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.

Virginia follows the actual risk doctrine which excludes an injury which comes from a hazard to which the employee would have been equally exposed apart from the employment. An actual risk of employment is not merely the risk of being injured while at work. The first premise of the actual risk doctrine requires a hazard or danger not equally present apart from the employment but rather one peculiar to the work. Without this precondition, any injury – of any kind no matter the cause – would be covered by the Workers’ Compensation Act. This would be unfair to employers.

THE COMMON AND UNPECULIAR QUESADILLA

Bernard’s quesadilla was neither a hazard nor a danger – it was simply a quesadilla. No evidence suggested it had unusual properties or was made with defective ingredients. It could not be distinguished (for purposes of presenting a choking risk) from any other quesadilla or, for that matter, any food that requires chewing before swallowing.

The Court of Appeal concluded that the commission correctly concluded Bernard’s choking injury occurred in the course of his employment since TGIF provided the quesadilla, and Bernard tried to eat it to be a better waiter. However, the Court of Appeal found that the commission was also right to conclude the injury did not arise out of an actual risk of the employment. The quesadilla was not a hazard or danger, much less one peculiar to TGIF. Swallowing partially chewed food was a risk Bernard faced equally on and off the job. Nothing about the TGIF quesadilla or Bernard’s work environment increased that risk.

ZALMA OPINION

Workers’ compensation insurance is a no fault system to compensate people who are injured while working and eliminate the need of employees to sue their employers. It is a very broad coverage and serves employees and employers well.

As this case shows workers’ compensation does not provide benefits for every injury that might happen at work. As this case in Virginia shows the employee, to recover workers’ compensation benefits must result from an actual risk of injury not equally present apart from the employment but rather one peculiar to the work. If Mr. Bernard had made and eaten a quesadilla at home and failed to properly chew it he would face the same potential for injury as that suffered when he failed to properly chew a quesadilla provided to him by his employer.

© 2012 – Barry Zalma

Barry Zalma, Esq., CFE, has practiced law in California for more than 40 years as an insurance coverage and claims handling lawyer. He also serves as an insurance consultant and expert witness specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud. Mr. Zalma serves as a consultant and expert, almost equally, for insurers and policyholders.

He founded Zalma Insurance Consultants in 2001 and serves as its senior consultant.

Mr. Zalma recently published the e-books, “Zalma on Insurance Fraud – 2012″; “Zalma on Diminution in Value Damages – 2012,”“Zalma on Insurance,” “Heads I Win, Tails You Lose — 2011,” “Zalma on Rescission in California,” “Arson for Profit”  and others that are available at www.zalma.com/zalmabooks.htm.

Mr. Zalma can also be seen on World Risk and Insurance News’ web based television program “Who Got Caught” with copies available at his website at http://www.zalma.com.