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Workers’ Compensation Benefits for Injuries Resulting from Tornadoes

No reported Alabama decision has addressed whether an injury caused by a tornado, hurricane, or windstorm arises out of the employment. However, the determining issue in a claim arising out of injuries sustained as a consequence of a tornado will likely be whether the injury “arose out of” the employment. The general test to be applied in determining whether the injury "arose out of" the employment is stated by Justice Murdock in his special concurrence in Ex parte Patton, 2011 WL 1522325 (April 22, 2011 Ala.). In Ex parte Patton, which overruled Ex parte Byrom, 895 So.2d 942 (Ala. 2004) (a decision in which the Alabama Supreme Court held compensable in injury caused by a lightning strike which conducted electricity through a telephone), Justice Murdock described the appropriate test:

“When an ‘act of God’ or some other force not normally considered as having been set in motion by the employment is the proximate cause' of the employee's injuries, however, operation of that force upon the employee nonetheless can be considered to have been ‘set in motion by the employment’ where the employment increases the employee's exposure to, or risk of exposure to, that force in excess of that to which people are normally exposed to in their everyday lives, i.e., when the increase risk test is satisfied.”

Review of decisions from other jurisdictions involving injury due to tornado finds that other courts have found increased risk due to the following factors:

  1. The employee is denied refuge from the tornado by the duties or conditions of the employment.
  2. The insecurity or effectiveness of the structure in which the employee was located.
  3. Forced exposure to the tornado risk.

Based on the available case authority, both in Alabama and in other jurisdictions, it appears that the compensability of an injury sustained as a consequence of a tornado necessitates evaluation of the circumstances of the employment in relation to the tornado and a determination as to whether the employment created an "increased risk" of injury beyond that of the general public.

Items on this web page are general in nature. They cannot—and should not—replace consultation with a competent legal professional. Nothing on this web page should be considered rendering legal advice.

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