Weather, Allegations, and Comp

Some such disasters are preceded by warning. Hurricanes now days are usually fairly well predicted in both strength and path. Often the warnings are disregarded by the brave (or not so smart), but they are there nonetheless. On the other end of the scale are the earthquakes, which are utterly unpredictable. And other examples offer some degree of potential forewarning somewhere in between. Tornados offer perhaps some potential for warning, but if it comes it is likely to be in terms of minutes, rather than the days we get for hurricanes. In one recent example a meteorologist interrupted his television broadcast in Washington to phone his children with such a warning, according to USA Today.  

In the working world, such natural events are a part of our daily risks. Such events may come while we are at work, may interfere with our ability to work, may cause damage that thereafter impairs our ability to reach work. In December 2021, tornados came to call in Kentucky, and their impact was severe, unexpected, and in some instances tragic. Anytime there is loss of life, we struggle with the challenges of comprehension and acceptance. When the impact occurs during work hours, then workers' compensation often becomes an added consideration. Some allege that in the December storms there were hours of warning, but it is less than clear whether that refers to warnings of potential severe weather or warning of the specific of a tornado in a specific location.  

Employees at a candle factory made the national news as a tornado impacted that facility in December. The Courier Journal reported that 110 people were inside when the factory was struck on December 10, 2021 and "turned the building into a pile of twisted ruble." Nine people perished in the disaster. Questions soon turned to why the factory had remained operational in the face of the severe weather warnings. Some employees asserted that they wanted to leave but were told they would be fired if they did so, an allegation that the employer denied. Though the article linked above focused upon those who died, it is probable that still others were injured. And thus the discussion of workers' compensation in its broadest context of either injury or death.  

While one's first inclination might be to reject the possibility of a court creating law, the fact is that the field of workers' compensation law is littered with instances in which various courts wandered from the pages of their state's statutes and created presumptions, inferences, and more "out of whole cloth." In the pandemic, we even saw governors create law through emergency actions. See Interesting Word Choice (July 2020). Such excursions and expeditions beyond the state's laws, while not uncommon, have also periodically impacted the predictability of state law, the underwriting of risk, and efficient operation of the concept of workers' compensation. Predictability is an important characteristic in many events; before filing a civil suit a plaintiff might want predictability regarding the potential for waiver discussed above. Parties to litigation need predictability.  

The lawsuit against this particular employer will be interesting to observe. The tragedy to many lives and families will be undeniable in any event. The impact of the storms on the community is evident in that human suffering and in the announcement that this employer will not reopen the destroyed factory, according to WYMT. Many jobs are thus lost and the community changed. Thus, the impact of the storms is clear, the tragedy defined, and as Don Henley noted in The End of the Innocence (A&M, 1989), in the end the "lawyers clean up all details." 

By Judge David Langham

Courtesy of Florida Workers' Comp