A T.G.I. Friday’s® (TGIF) waiter, “Russell,” was encouraged, but not required, by his employer to sample new menu items, so that he could make recommendations to customers. During a food sampling, the waiter choked while eating a quesadilla.
He was taken to an emergency room, where it was determined that he had a perforated esophagus and a collapsed lung.
The waiter filed a worker’s compensation claim, but the deputy commissioner declined it, and the majority of commissioners agreed. Although they found that the injury occurred “in the course of his employment,” they said it “did not arise out of an actual risk of employment.”
Russell appealed to the Court of Appeals of Virginia.
The court affirmed, noting that the terms “in the course of” and “arising out of” employment are not synonymous and that both must be proven for an injured employee to be awarded workers’ compensation benefits.
The court noted, “Swallowing partially chewed food was a risk … [Russell] faced equally on and off the job. Nothing about the TGIF quesadilla or … [Russell’s] work environment increased that risk.”
Read the full article on HR.BLR.com.