August 24, 2012

Annals of Compensability: The Case of the Clogging Quesadilla

What better blog fodder for a Friday than a waiter at TGI Friday's choking on a quesadilla? Michael Bernard was sampling new menu items at his restaurant in Virginia when he literally bit off more than he could chew: he tried to eat a piece of quesadilla that was too big for his esophagus. It caught in his throat. In the process of trying to remove it, he perforated his esophagus and his lung collapsed.

Bernard filed for workers comp. While it is clear that his injury occurred "in the course and scope of employment," the question was whether it arose "out of employment." Virginia's standards for compensability are more stringent than those in many other states. The Court of Appeals upheld a lower court's denial of the claim. The judges focused on the quesadilla itself: was there anything unusual about it that might cause a swallowing problem? Bernard testified that there was not. As the majority wrote, "Bernard's quesadilla was neither a hazard nor a danger - it was simply a quesadilla."

Risks Unique to the Workplace
The judges noted that under Virginia law, injuries must stem from risks unique to the workplace. For example, an employee who trips while walking on stairs cannot collect workers comp unless there was something unusual about the steps or related conditions in the workplace. (In most other states, a fall on the stairs at work is compensable, even if the stairs were free of hazards.)

Bernard's lawyer argued that the injury arose "out of employment" because quesadilla testing was a job requirement which furthered the interests of the employer. If a customer asked "would you recommend the quesadillas?" a waiter - presumably not Bernard - could testify to their relative deliciousness. The judges determined that swallowing food was a hazard confronting Bernard every day of his life; there was nothing extraordinary or unique in swallowing an ordinary quesadilla.

Essential Job Functions
In a dissenting opinion, Justice Frank points out that quesadilla testing was an essential requirement of the job:

Browning Bridges, claimant's supervisor, testified the food tasting activity was to familiarize staff with the taste of new foods so they could explain those tastes to guests. Part of a host/server's employment responsibilities is to "sell the food." While attendance at the food tasting activities is mandatory, no employee is required to eat anything they do not want to eat. However, all host/servers are evaluated on the effectiveness of their recommendations to guests, and failure to make such recommendations can result in counseling by management. Employer even employs "secret shoppers" to assess staff members' performance, including recommendations of menu items.

Alas, had Bernard known the consequences of the simple taste test, he could have passed on the quesadilla. When asked by a customer if he would recommend it, he could have simply said: "Absolutely. They're great!" But he did what he was asked to do and paid a terrible price.

The moral of the story comes from our mothers: slow down, eat small bites, and chew your food carefully. Most of us, in the course of our hectic lives, are prone to ignore this sage advice.

| 1 Comment

1 Comment

Jon that is why it is important not to bite off more than you can chew regardless whter you have the stomach for it.

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About this Entry

This page contains a single entry by Jon Coppelman published on August 24, 2012 10:21 AM.

Cavalcade of Risk and other news items of note was the previous entry in this blog.

New York: A Micro-Step into the Electronic Age is the next entry in this blog.

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