VA: Virginia Court Mischaracterizes “Actual Risk” Test in Determining Legal Causation, Yet Offers Motherly Advice: “Waiters, Take Small Bites!”

Affirming a decision of the state’s Workers’ Compensation Commission that had denied 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 the evening, the Court of Appeals of Virginia, in a divided opinion, recently held that while the waiter’s injury occurred “in the course of his employment,” it did not “arise from an actual risk” of that employment [Bernard v. Carlson Cos., 2012 Va. App. LEXIS 236 (July 17, 2012)]. The majority added that the quesadilla was not a hazard or danger, much less one peculiar to the restaurant.

The majority, quoting Taylor v. Mobile Corp., 248 Va. 101, 444 S.E.2d 705 (1994), indicated that in determining whether an injury arose from the employment, Virginia followed the “actual risk” doctrine which, as the majority characterized it, “excludes ‘an injury which comes from a hazard to which the employee would have been equally exposed apart from the employment.’” The majority stressed that the causative danger “must be peculiar to the work and not common to the neighborhood.”

Three things bother me about the majority’s opinion. First–and for most of you, this will be minor–the majority continues the Virginia practice of treating the “arising out of and in the course of the employment” (“AOE/COE”) formula as two separate tests that must be successfully maneuvered by the injured employee, instead of one. While there is ample judicial precedent within Virginia for such a stark bifurcation of the AOE/COE formula, I trust the Virginia courts recognize that they are out-of-step with those in the vast majority of other jurisdictions who understand that the standard, whose origin was in the British Act, is a single test, that while, for simplicity’s sake, it does no real harm to discuss the test or standard in two parts, there is actually but one overarching test [see Larson’s Workers’ Compensation Law, § 3.04 et seq.].

Second, continuing a Virginia judicial practice stretching back several decades, the majority, on the one hand, indicated that was utilizing the “actual risk” test to determine whether the injury arose from the employment and yet, on the other hand, the majority mischaracterized the “actual risk” test, describing a test more like a combination of the “peculiar risk” test [see Larson, § 3.02], which, as Dr. Larson noted, has “achieved a well-deserved oblivion,” and the “increased-risk” test [see Larson, § 3.03].

Third, in one of its initial comments regarding the case, the majority of the Court of Appeals appears to have introduced the element of employee fault into its decision. Except in cases of fraudulent activity on the part of an injured employee, fault has no place within the workers’ compensation context. 

Factual Background

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. In January 2010, Bernard sampled a quesadilla. Though he had never before had problems swallowing food, he choked on a partially chewed bite of the quesadilla. The strenuous process of dislodging it damaged his esophagus.

The deputy commissioner denied Bernard’s claim, finding that the injury occurred in the course of the employment, but did not arise out of an actual risk of the employment. The deputy commissioner held that no evidence suggested the quesadilla was in any way unusual or defective. On review, the majority of the commissioners agreed.

Majority’s Opinion: Failure to Chew the Quesadilla and Injury Did Not Arise from Employment

On further appeal, the majority initially indicated that Bernard had conceded he “attempted to swallow a piece of quesadilla that was too big for his esophagus.” According to the majority, Bernard argued that the incident should be covered by the workers’ compensation statute because TGIF “provided” the quesadilla and “encouraged” him to eat it. The majority indicated that it agreed that 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. Citing City of Chesterfield v. Johnson, 237 Va. 180, 376 S.E.2d 73 (1989), the majority said that no matter how tempting it was to conflate the two concepts, it must be vigilant “to maintain the distinction between arising ‘out of’ and arising ‘in the course of’ employment.” Using the bifurcated AOE/COE test, the majority disagreed that Bernard’s failure to fully chew the quesadilla and his resulting injury arose out of his employment.

Actual Risk Doctrine

The majority, quoting Taylor v. Mobile Corp., 248 Va. 101, 444 S.E.2d 705 (1994), continued that Virginia followed the “actual risk” doctrine which, as the majority characterized it, “excludes ‘an injury which comes from a hazard to which the employee would have been equally exposed apart from the employment.’” The majority stressed that the causative danger “must be peculiar to the work and not common to the neighborhood.”

The majority observed that the most common examples of the arising-out-of principle are the cases involving tripping on steps. According to the majority, in Virginia, 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 work site. 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. 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.

That Bernard ate the quesadilla to be a better waiter only established the injury occurred during the course of employment, indicated the majority. That the injury occurred at work added nothing and answered nothing; the inquiry was whether the injury arose out of the employment. It simply helped prove the “in the course of” prong of the compensability test. According to the majority, Bernard’s quesadilla was neither a hazard nor a danger — it was simply a quesadilla. “Even if we could call a flawless quesadilla a ‘hazard’ or a ‘danger,’ the majority indicated it could hardly conclude it was one “peculiar” to TGIF and “not common to the neighborhood” of quesadilla eaters. Nor could the majority say the risk of Bernard choking on under-chewed food was something other than “a hazard to which the workman would have been equally exposed apart from the employment.”

The majority concluded that since the commission correctly applied the actual risk test to the facts of the case, it affirmed the commission’s denial of Bernard’s claim.

Judge Frank Dissented

Judge Frank disagreed that Bernard’s consumption of the quesadilla was simply a “common, human experience” and therefore not arising out of his employment. For Judge Frank, sampling the quesadilla was a causative hazard of claimant’s employment because Bernard was discharging some duty he was authorized or directed to perform in furtherance of his employer’s business [citation omitted].

Judge Frank observed that Bernard was a host/server and was evaluated partially on the manner in which he recommended food to customers. The food tasting demonstration allowed employees to sample new menu items so they could make these recommendations to customers. Part of the host/server’s job function was to “sell the food.” Bernard’s tasting the quesadilla was to further employer’s goal to “sell the food.” The briefing and the tasting enabled him to explain to the customers the new menu items. Bernard’s food sampling fulfilled “his contract of service,” was done in furthering employer’s business, and was incidental to claimant’s work as a host/server. Judge Frank added that, clearly, Bernard’s exposure to the quesadilla was occasioned by the nature of his employment, thus satisfying the “actual risk” test. To Judge Frank, it was irrelevant that others outside the workplace might have been exposed to the same injury.

Does Virginia Actually Follow the Actual Risk Rule?

In giving lip service to the actual risk test, the majority first stressed that the causative danger “must be peculiar to the work and not common to the neighborhood” [emphasis added]. That isn’t the actual risk test at all. Under the actual risk test, as explained by Professor Larson, it does not matter that the risk “is also common to the public, if in fact it was a risk of this employment” [Larson, § 3.04]. The first part of the majority’s description of the actual risk test is instead an almost verbatim restatement of the peculiar risk test. Since chewing food was not peculiar to the employment, the majority indicated an injury springing from such chewing could not be compensable.

The second part of the majority’s discussion of the actual risk test again missed the mark, but it did temper somewhat the majority’s use of peculiar risk language. Here the majority indicated that compensation should be excluded where the injury came from a hazard to which the employee would have been equally exposed apart from the employment. That part of the majority’s statement is pretty close to the “increased risk” test. In other words, if the quantitative risk of injury chewing food within the restaurant could have been established by Bernard, perhaps he could have recovered.

Either way, however, the Virginia courts, as expressed by the majority’s opinion, do not follow the actual risk test. For clarity’s sake, Virginia courts should clarify things.

Did the Majority of the Virginia Court Inappropriately Introduce an Element of Fault into Its Thinking?

Finally, the majority seemed to introduce employee fault into the scenario. In the beginning portion of its opinion, the majority stated, “On appeal to us, Bernard concedes he ‘attempted to swallow a piece of quesadilla that was too big for his esophagus’” [reference to Bernar’s brief omitted]. So what?

What is the point of such a gratuitous statement, if not to stress to Bernard that the real cause of his injury was his own negligence–his attempt to swallow a bite of food that was too large for his esophagus? The majority stressed that the quesadilla was in no way unusual or defective. The implication to Bernard: “if the bite you took was unusually large, that’s your problem.”

In a different case, would the majority desire that an injured worker “concede,” for example, that the load he attempted to pick up was too heavy? If the majority isn’t trying to introduce the element of fault here, what is its purpose? Perhaps the majority is merely asking the employee to heed the sort of advice most of us received when we were children, “take small bites.” That sort of advice should be heeded by restaurant workers within the Commonwealth of Virginia. According to the majority, eating is not an actual risk of your employment.

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