Whetro v. Awkerman

Two workers’ compensation cases resulting from a tornado were consolidated. Carl Whetro (plaintiff) was injured when the tornado destroyed the residence where he was working as a caretaker-gardener. Whetro sought medical-expense reimbursement from his employer (defendant). Henry Emery was killed when the tornado destroyed the motel where he was staying during a business sales trip. Emery’s widow (plaintiff) sought compensation from Emery’s employer (defendant) for Emery’s death. The hearing referee in the two cases found that Whetro’s and Emery’s injuries arose out of and in the course of their employment and awarded damages. The appeal board affirmed both awards. The court of appeals affirmed Whetro’s award. Both employers appealed. The employers argued that tornadoes were acts of God and that injuries caused by tornadoes do not arise out of the employment and are therefore not compensable under the Workers’ Compensation Act (the Act). The employers claimed that their employees’ injuries did not arise out of their jobs, because “out of” in the Act referred to a causal connection between the event that initiated the forces causing the injury and the work itself. The employers argued that working as a caretaker-gardener or salesman did not include tornadoes as incidents or conditions of the work, and that the path of injury was determined by the tornado, not the employment. The employers cited several cases in which employees injured by lightning were denied workers’ compensation. The employees argued a tornado was like lightning because both lightning and tornadoes act capriciously, leaving their victims and the untouched side by side.