Lawyer Claire C. Carr has served as a managing partner with the Richmond, VA, law firm of Kalbaugh, Pfund & Messersmith, PC, for 27 years. Claire C. Carr has tried hundreds of workers’ compensation cases based on precedents set by prior decisions such as in Bernard vs. Carlson Companies.

The decision in the 2012 case Bernard v. Carlson Companies-TGIF, 60 Va. App. 400 (2012) set a precedent for company’s responsibility under the Virginia Workers’ Compensation Act for certain types of injuries sustained in the workplace. In 2010, restaurant worker Michael Bernard choked on a piece of quesadilla that he was sampling during a food tasting session. He sustained damage to his esophagus and lungs while attempting to dislodge the morsel and had to undergo emergency surgery.

He filed a workers’ compensation claim against his employer, TGI Friday’s, since the incident occurred at his workplace while he was engaged in a job duty. However, this claim was dismissed by the Workers’ Compensation Commission based on the premise that the injury was not due to anything specific about the workplace or his employer.

The commission determined that Bernard was not mandated to eat any food in any manner, nor was the quesadilla itself defective. The case went before the Virginia Court of Appeals, which upheld the commission’s finding. According to the court, Bernard would have faced the same choking risk had he eaten the quesadilla at home. Therefore, his employer could not be held liable.

This case demonstrated that not all injuries occurring in the workplace can be attributed to the work environment. If the likelihood of sustaining a particular injury is similar inside or outside the workplace, a worker may not be entitled to recovery.