Quesadilla Bites Back: Restaurant Waiter’s Choking Was Not Actual Risk of Employment (Virginia)

Who knew quesadillas could be so dangerous to one's esophagus? The restaurant did not make him eat the quesadilla so they should not have to be responsible, unless of course, if there was a foreign object that he ate. 

Affirming the bizarre reasoning of the state’s Workers’ Compensation Commission, in July the Court of Appeals of Virginia, in a divided opinion, affirmed a denial of benefits to a restaurant host/waiter who injured his esophagus while attempting to swallow a bite of quesadilla that he was tasting in order to be able to make recommendations to the restaurant’s patrons later in his shift. Agreeing that the injury occurred in the course of the waiter’s employment, but finding that it did not result from an actual risk of the employment, the appellate court stressed that Virginia uses the actual risk doctrine, which the court said excludes an injury that comes from a hazard to which the employee would have been equally exposed apart from the employment. It did not matter, said the court, that the waiter ate the quesadilla to be a better waiter; that only established the injury occurred during the course of the employment. The commission was right to conclude the injury did not arise out of an actual risk of the employment. The quesadilla was not a hazard or danger, much less one peculiar to the restaurant, stated the appellate court. Most courts would say that instead of describing the “actual risk” doctrine, the Virginia court here utilized the standards of the “increased risk” doctrine.