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No work comp benefits for server who choked on quesadilla

In workers' compensation defense news, a Virginia appeals court recently decided a rather interesting issue: whether a waiter who suffered serious injuries while choking on a quesadilla at a company food tasting is eligible for work comp benefits.

According to the facts of the case, Michael B. was employed as a host and waiter at a TGI Friday's restaurant in Virginia in 2010. As part of his duties, he was expected to provide customers with informed recommendations about the establishment's various menu items.

In order to enable its wait staff to make these food recommendations, TGI Friday's would occasionally hold free food-tasting programs showcasing new menu items. Attendance at these on-the-clock demonstrations was mandatory, but employees were not required to taste any of the food on display.

In January 2010, Michael B. attended one of these demonstrations and tried a sample of a quesadilla. Unfortunately, he began choking on the partially chewed piece of food and had to be transported to a nearby emergency room for treatment.

Here, Michael B. was diagnosed with both a collapsed lung and a perforated esophagus, and underwent emergency surgery.

Shortly thereafter, he filed a claim for workers' compensation benefits, which was promptly challenged by TGI Friday's.

Michael B. eventually argued before the Virginia Workers' Compensation Commission that even though he "attempted to swallow a piece of quesadilla that was too big for his esophagus," the work injury was nevertheless covered by the state's work comp statute since TGI Friday's "provided" the food sample and "encouraged" him to consume it.

The commission ultimately denied the work comp claim and the Court of Appeals of Virginia affirmed this decision.

Here, the court stated that Virginia's Workers' Compensation Act had two prongs that had to be satisfied before any work comp benefits can be awarded. First, the injured worker must prove that the injury occurred "in the course of employment," and second that it "arose out of" their employment.

Here, the court said that while Michael B.'s injury did occur in the course of his employment, his failure to chew the quesadilla did not arise out of his employment.

Stay tuned for further developments in the area of workers' compensation defense law ...

This post was provided for informational purposes only and is not to be construed as legal or medical advice.

Source:

Insurance Journal, "Va. Court: Waiter's choking on quesadilla didn't arise out of employment," August 1, 2012

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