Arising out of Employment
August 6, 2012
A restaurant worker sought workers compensation benefits for injury to his esophagus after choking on a piece of quesadilla during food tasting at the restaurant. The workers comp commission denied his claim and this appeal followed. This case is Bernard v. Carlson Companies, 2012 WL 2886710.
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. Bernard was sampling a quesadilla when he attempted to swallow a piece that was too big for his esophagus and he started to choke. The strenuous process of dislodging the quesadilla damaged his esophagus.
Bernard filed a workers comp claim, contending that the injury occurred in the course of employment and arose out of an actual risk of his employment. The deputy commissioner of the workers comp board denied the claim, finding that the injury did occur in the course of employment but it did not arise out of an actual risk of the employment. Bernard appealed the decision.
The Court of Appeals of Virginia, Richmond, noted Bernard's argument for coverage was that TGIF provided the quesadilla and encouraged him to eat it. The court agreed that TGIF provided Bernard with the food while he was working and encouraged him to eat it and this meant that the injury occurred in the course of his employment. However, the court said, Bernard's failure to fully chew the quesadilla and his resulting injury did not mean the injury arose out of his employment.
The court said 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. These two prongs are not synonymous and both conditions must be proved before compensation will be awarded. Failing to maintain the distinction between the two prongs transforms the analysis of workers comp coverage into an assessment of positional risk, which asks only if the injury occurred during the course of employment. The appeals court would not do this.
Virginia follows the actual risk doctrine, said the court, and this excludes an injury that comes from a hazard to which the employee would have been equally exposed apart from the employment. In other words, the causative danger must be peculiar to the work and not common to the neighborhood. Without this precondition, any injury of any kind no matter what the cause would be covered by the workers compensation act.
The court ruled that the commission correctly concluded that Bernard's choking injury occurred in the course of his employment, but also correctly held that 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 employment increased that risk.
The denial of workers comp benefits was affirmed.
Editor's Note: Workers compensation coverage is based on the workers compensation law of the state. In this instance, that state law required that for an employee to receive workers compensation benefits, the injury must occur in the course of employment and arise out of the employment. The court of appeals made a point of noting that the two requirements are separate and both must be met before workers comp benefits will be paid.
Note also that the court offered a brief description of the positional risk doctrine and the actual risk doctrine and said that Virginia follows the latter one. 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. Bernard's claim did not fit into this category and so, his claim for benefits was denied.