Bernard v. Carlson Companies–Tgif

Citation728 S.E.2d 508,60 Va.App. 400
Decision Date17 July 2012
Docket NumberRecord No. 2590–11–2.
PartiesMichael BERNARD v. CARLSON COMPANIES–TGIF and Indemnity Insurance Company of North America.
CourtCourt of Appeals of Virginia


Joel W. Young (Law Offices of Wesley G. Marshall, PLC, on brief), for appellant.

R. Ferrell Newman (Newman & Wright, RLLP, on brief), for appellees.

Present: FELTON, C.J., and FRANK and KELSEY, JJ.

KELSEY, Judge.

The Virginia Workers' Compensation Commission denied a claim filed by Michael Bernard, a restaurant waiter who “attempted to swallow a piece of quesadilla that was too big for his esophagus.” Appellant's Br. at 10. The commission found Bernard's injury occurred in the course of his employment but not as a result of an actual risk of employment. Agreeing with the commission's legal reasoning and deferring to its factfinding, we affirm.


We view the evidence on appeal in the light most favorable to Bernard's employer, “the prevailing party before the commission.” Dunnavant v. Newman Tire Co., 51 Va.App. 252, 255, 656 S.E.2d 431, 433 (2008).

In 2010, 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. The commission found Bernard “was not required to taste anything” and “did not anticipate being disciplined” if he chose not to sample the food. Bernard v. Carlson Cos.–TGIF, 2011 Va. Wrk. Comp. Lexis 401 (Nov. 23, 2011). In January 2010, Bernard sampled a quesadilla. Though he had never before had problems swallowing food, Bernard choked on a partially chewed bite of the quesadilla. The strenuous process of dislodging it damaged his esophagus.

Bernard filed a worker's compensation claim, contending the injury occurred in the course of his employment and arose out of an actual risk of his employment. He did not allege the quesadilla was unusual or defective in any way. Bernard has had Crohn's disease since childhood. But he did not claim, nor did the evidence prove, that some peculiar quality of the quesadilla triggered his underlying Crohn's disease.

The deputy commissioner denied the claim, finding the injury occurred in the course of the employment but did not arise out of an actual risk of the employment. Relying on precedent from the commission,1 the deputy held no evidence suggested the quesadilla was in any way unusual or defective. On review, the majority of the commissioners agreed. Relying on its own precedent, as well as our caselaw, the commission held:

[W]e find that the claimant's injury did not arise out of a risk of his employment. In cases of injury due to food provided by the employer, we have found compensable injuries only when there was something unusual or abnormal about the food, i.e. it was spicy, hot in temperature, or contained a hard object. Here, there was no problem documented with the quesadilla which became stuck in the claimant's throat and caused his injury. The claimant did not assert that it was something that he should not eat because of his medical condition. The claimant would have been equally exposed to any risk connected with eating an ordinary quesadilla had he eaten it apart from his employment.

Id. Commissioner Diamond dissented on the ground that TGIF exposed Bernard to the risk of eating “novel foods” like a quesadilla. Id.


On appeal to us, Bernard concedes he “attempted to swallow a piece of quesadilla that was too big for his esophagus.” Appellant's Br. at 10. The incident should be covered by the workers' compensation statute, Bernard argues, because TGIF “provided” the quesadilla and “encouraged” him to eat it. Id. We agree TGIF provided Bernard with the quesadilla, while he was working, and encouraged him to eat it—thus his injury occurred in the course of his employment. We disagree, however, that his failure to fully chew the quesadilla and his resulting injury arose out of his employment.


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.”Butler v. S. States Coop., Inc., 270 Va. 459, 465, 620 S.E.2d 768, 772 (2005). “The concepts ‘arising out of’ and ‘in the course of’ employment are not synonymous and both conditions must be proved before compensation will be awarded.” Clifton v. Clifton Cable Contracting, LLC, 54 Va.App. 532, 539, 680 S.E.2d 348, 352 (2009) (quoting Grand Union Co. v. Bynum, 226 Va. 140, 143, 307 S.E.2d 456, 458 (1983)).

No matter how tempting it is to conflate the two concepts, we must be vigilant “to maintain the distinction between arising ‘out of’ and arising ‘in the course of’ employment.” Cnty. of Chesterfield v. Johnson, 237 Va. 180, 186, 376 S.E.2d 73, 76 (1989). Failing to do so transforms the analysis into an assessment of “positional risk,” which asks only if the injury occurred during the course of employment. Id. at 185, 376 S.E.2d at 75–76. Arguments like this—overlooking “the difference between the concepts of ‘arising out of’ and ‘in the course of’ the employment”—are little more than efforts to “eradicate the distinction which exists under Virginia law between these expressions” and, if successful, “would mean an acceptance of the ‘positional risk’ doctrine in cases of this type and amount to a rejection of the ‘actual risk’ test long-recognized in Virginia.” Baggett & Meador Cos. v. Dillon, 219 Va. 633, 640, 248 S.E.2d 819, 823 (1978) (citation omitted).

To this end, Virginia follows the “actual risk” doctrine which “excludes ‘an injury which comes from a hazard to which the employee would have been equally exposed apart from the employment.’ Taylor v. Mobil Corp., 248 Va. 101, 107, 444 S.E.2d 705, 708 (1994) (quoting Johnson, 237 Va. at 183, 376 S.E.2d at 75, and United Parcel Serv. v. Fetterman, 230 Va. 257, 258, 336 S.E.2d 892, 893 (1985)). An ‘actual risk’ of employment” is “not merely the risk of being injured while at work.” Id. Reversing one of our opinions for [i]n effect” applying the “doctrine of positional risk,” the Virginia Supreme Court repeated that it has “consistently rejected” the doctrine. Hill City Trucking v. Christian, 238 Va. 735, 740, 385 S.E.2d 377, 380 (1989). The “actual risk” standard, the Court emphasized, necessarily excludes an injury caused by a hazard to which the workman would have been equally exposed apart from the employment. The causative danger must be peculiar to the work and not common to the neighborhood.” Id. at 739, 385 S.E.2d at 379 (emphasis in original) (quoting Baggett & Meador Cos., 219 Va. at 638, 248 S.E.2d at 822).

Virginia courts have applied this understanding of the actual risk doctrine in numerous cases.2 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.” Id. Without this precondition, any injury—of any kind no matter the cause—would be covered by the Workers' Compensation Act. This would be unfair to employers (by greatly expanding their no-fault liability for worker injuries) and equally unfair to employees (by greatly expanding the employer's immunity to fault-based tort recoveries). Policing the line between coverage and noncoverage is critical to the “societal exchange” that underlies the “ quid pro quo ” of the statute. Roller v. Basic Constr. Co., 238 Va. 321, 327, 384 S.E.2d 323, 325 (1989).

Perhaps the most common examples of the arising-out-of principle are the cases involving tripping on steps. An employee who trips while walking up a staircase at work cannot recover compensation unless something about the steps (or some other condition of the workplace) presented a hazard or danger peculiar to the worksite. Even though the employer provided the steps, and encouraged the employee to use them, if there is “nothing unusual about or wrong with the steps,” an employee who trips over them cannot show the accident “arose out of” the employment. Johnson, 237 Va. at 185–86, 376 S.E.2d at 76.

On the other hand, if the steps are “unusual” because they are “slightly higher than normal” or otherwise peculiar, then tripping over them would involve an accident arising out of the employment. Id. (pointing out these “facts were crucial” to cases like Reserve Life Ins. Co. v. Hosey, 208 Va. 568, 159 S.E.2d 633 (1968)). In such cases, the steps present an enhanced risk,3 qualitatively different from the steps most people walk up and down on and off the job.

It does not matter that the employee must walk up and down the steps as a mandatory part of his employment. That obligatory fact—like the fact that Bernard ate the quesadilla to be a better waiter—only establishes the injury occurred during the course of employment. “The fact that the injury occurred at work adds nothing and answers nothing, when the inquiry is, did the injury arise out of the employment. It simply helps prove the ‘in the course of’ prong of the compensability test.” Johnson, 237 Va. at 185, 376 S.E.2d at 76.


Virginia courts have carved out of these general principles one notable exception. Under the “street-risk rule,” Marketing Profiles, Inc. v. Hill, 17 Va.App. 431, 435, 437 S.E.2d 727, 730 (1993) ( en banc ), the generally applicable principles—excluding coverage for unpeculiar risks, common to everyone—do not necessarily apply to vehicle accidents caused by ordinary street risks. “An exception to the rule that the risk of employment must be a risk to which the common neighborhood is not exposed is the ‘Street Risk Doctrine.’ This principle recognizes compensable injuries that occur in vehicular collisions while an employee is on his or her master's business.” Lawrence J. Pascal, Workers' Compensation Practice in Virginia ¶ 2.401, at 58 (8th ed.2011) (emphasis added).

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