Workers’ Compensation Research Paper

These cases were consolidated pursuant to our order of September 5, 1968 wherein we granted leave to appeal prior to decision by the Court of Appeals in the case of Emery v. Huge Company, 381 Mich. 774. They were argued together in our April 1969 term.

They turn on the same question, for the damages for which workmen’s compensation was awarded in each case were caused by the Palm Sunday 1965 tornadoes which devastated parts of Southern Michigan.

Carl Whetro was injured when the tornado destroyed the residence wherein he was working for his employer and seeks reimbursement for his medical expenses. Henry E. Emery was killed when the motel in which he was staying while on a business trip for his employer was destroyed by the tornado, and his widow seeks compensation for his death.

In each case the hearing referee found that the employee’s injury arose out of and in the course of his employment. The award was affirmed by the appeal board in each case and by the Court of Appeals in the Whetro case.

The defendant-appellants in both cases base their defense on the assertion that tornadoes are ‘acts of God’ or acts of nature and injuries which are caused by them do not arise ‘out of’ the employment and hence are not compensable under the Workmen’s Compensation Act.1

For this reason they maintain that the cases were erroneously decided as a matter of law and the awards should be set aside.

The appellants in each case maintain that the injury did not arise ‘out of’ the employment because that phrase as it is used in the act refers to a causal connection between the event which put in motion the forces which caused the injury and the work itself or the conditions under which it is required to be performed.

Employment as a caretaker-gardener or salesman, they argue, does not include tornadoes as incidents or conditions of the work, and the path of injury is determined by the tornado, not the employment.

Appellants cite a series of Michigan decisions involving injury by lightning; Klawinski v. Lake Shore & Michigan Southern R. Co. (1915), 185 Mich. 643, 152 N.W. 213, L.R.A. 1916A, 342; Thier v. Widdifield (1920), 210 Mich. 355, 178 N.W. 16; Nelson v. Country Club of Detroit (1951), 329 Mich. 479, 45 N.W.2d 362; Kroon v. Kalamazoo County Road Commission (1954), 339 Mich. 1, 62 N.W.2d 641, in which compensation was denied and assert that a tornado is like lightning in that it acts capriciously, leaving its victims and the untouched side by side. The decisions in all of these ‘lightning cases’ denied compensation on the ground that the injury did not arise ‘out of’ the employment because the employment did not expose the workman to any increased risk or to a more hazardous situation than faced by others in the area.

The Court of Appeals was able to distinguish between a tornado and a bolt of lightning as a causative force of injury and base its decision affirming the award for Carl Whetro on the reasoning of the Massachusetts supreme court in Caswell’s Case (1940), 305 Mass. 500, 26 N.E.2d 328, wherein recovery was allowed for injuries received when a brick wall of the employer’s factory was blown down on workmen during a hurricane. This ‘contact with the premises’ met the requirement that the injury arise ‘out of’ the employment in the mind of the Court of Appeals.

We are unable to accept the distinction drawn between a tornado and bolt of lightning when viewed as the cause of an injury. As we see it, a tornado, no less than a bolt of lightning or an earthquake or flood is an ‘act of God’ and if the phrase ‘out of’ the employment in the Workmen’s Compensation Act necessarily entails the motion of proximate causality, no injury received because of an ‘act of God’ should be compensable.

But we are satisfied that it is no longer necessary to establish a relationship of proximate causality between employment and an injury in order to establish compensability. Accordingly we no longer regard an ‘act of God’ whether it be a tornado, lightning, earthquake, or flood as a defense to a claim for a work connected injury. Such a defense retains too much of the idea that an employer should not pay compensation unless he is somehow at fault. This concept from the law of tort is inconsistent with the law of workmen’s compensation.

[1] The purpose of the compensation act as set forth in its title, is to promote the welfare of the people of Michigan relating to the liability of employers for injuries or death sustained by their employees. The legislative policy is to provide financial and medical benefits to the victims of work connected injuries in an efficient, dignified and certain form. The act allocates the burden of such payments to the most appropriate source of payment, the consumer of the product.2

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