Officer’s Choking On Hamburger Not A Workers’ Comp Injury

Jonathan Lewicki is a New Castle County, Delaware police officer. On New Year’s Eve, 2002, Lewicki was scheduled to work as a road officer. Lewicki was permitted to stop and eat lunch during his shift because he did not have a specific break time allotted for lunch.

Shortly before 3:00 a.m., Lewicki purchased a hamburger, fries and a soda from a nearby fast food restaurant and drove to a park to eat and work on his computer. Lewicki took a bite of the hamburger and a piece of meat became lodged in his throat.

Lewicki radioed for help and another officer arrived and dislodged some of the meat by performing the Heimlich maneuver. An ambulance transported Lewicki to a hospital, where emergency surgery was performed to remove the remaining food. Later, a surgeon performed a second operation to correct Lewicki’s “tight cervical esophageal web.”

Lewicki filed a workers’ compensation claim for his condition, contending that it was work-related. The Delaware Supreme Court rejected the claim.

The Court concluded that “Lewicki’s choking incident did not occur as the result of any specific job requirements. His congenital and medical condition caused his injury. Lewicki’s situation is comparable to one involving awarding benefits to a person who suffered a heart attack because of a congenital heart condition, but without any contributing or triggering event. Because of Lewicki’s congenital condition, he could have choked at any time while eating at any place. Lewicki was not performing any specific job requirements at the time of the choking incident that caused him to eat other than normally.”

Lewicki v. New Castle County, 2006 WL 3307436 (Del. 2006).

This article appears in the January 2007 issue