If a restaurant employee chokes on the restaurant’s food, is that a workers’ comp claim?

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If I said to you, “Off the top of your head, name three workers’ comp-related things that could happen to a waiter in a restaurant,” what might come to mind? A slip and fall, a burn, trauma from a robbery, even. Out of all the negative things that could happen to a restaurant worker in the course of their employment, would you imagine that choking would be a potential hazard that an employee might find himself seeking compensation over?

Well, meet Mr. Michael Bernard. He lives in Virginia and is a host and waiter for the restaurant chain TGI Friday’s. Bernard filed for workers’ compensation benefits in 2010 after he suffered  through the wacky happenstance of choking on a danger-laced quesadilla. Bernard’s claim was that he was injured by the “strenuous process of dislodging” his “partially chewed food” after he “attempted to swallow a piece of quesadilla that was too big for his esophagus”, according to Virginia Court of Appeals records.


Court records also show that Bernard suffered a perforated esophagus and collapsed lung that required emergency surgery after the choking incident in question.

According to Bernard, TGI Friday’s employees often sample the restaurant’s food in the course of their employment in order to recommend dishes to customers.

The Virginia Workers’ Compensation Commission found that Michael Bernard’s injury did indeed occur in the course of employment, but denied his claim for benefits, stating that there was nothing ‘unusual or abnormal’ about the quesadilla would cause injury. (It was not made with rocks, apparently, or spikes, or anything else that might make your basic everyday quesadilla more daunting and injurious.)

In a 2-1 decision this past week, The Virginia Court of Appeals upheld that ruling, saying that Bernard’s choking risk was not unique to his employment. They believed it was something that could have occurred anywhere and just so happened to do so in Bernard’s workplace.
“Swallowing partially chewed food was a risk Bernard faced equally on and off the job,” the majority opinion reads. “Nothing about the TGIF quesadilla or Bernard’s work environment increased that risk.”

Justice Robert P. Frank was not in agreement with this ruling. In his dissenting opinion, the Justice said that Bernard should receive workers’ compensation benefits because food tastings were part of his job so that he could recommend dishes to guests.

While unusual, this type of case is not unheard of. Back in 2007, a police officer in Delaware lost his bid for workers’ compensation benefits over a choking incident involving a hamburger. Jonathan Lewicki, while working as a road officer in 2002, stopped to eat a burger on a break during his patrol shift. He took one bite of the hamburger, a piece of meat got lodged in his throat, and Lewicki had to radio for help.

Another officer arrived, performed the Heimlich on him, which dislodged some of the meat in Lewicki’s throat. Lewicki was then taken to a hospital by ambulance and went into emergency surgery for removal of the remaining food. Later, there was a second surgery to correct Lewicki’s tight esophagus.

The Court in Delaware found against Lewicki, stating that he “…was not performing any specific job requirements at the time of the choking incident that caused him to eat other than normally.” For benefits to have been awarded, maybe he had to be chasing a suspect, or stopping a robbery mid-chew?

All kidding aside, if you have a workplace injury that you feel needs to be covered by your employer’s workers’ compensation insurance, give us a call. We’d love to help you sort through any red tape or resistance and seek satisfaction on your claim.



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