dissenting. I respectfully dissent because I am of the very strong opinion that the “positional risk” doctrine has no place within the framework of our Workers’ Compensation Act. In my judgment, application of the doctrine to injuries resulting from “Acts of God” ignores clear and unambiguous sections of our Worker’s Compensation Act, and many years of case law interpreting and applying those sections.
The only “injuries” for which workers’ compensation benefits are provided are those that are sustained in the course of the employment and that arise out of it. Ark. Code Ann. §§ 11-9-102(4); 11-9-401 (a)(1) (1987). “In the course of the employment” refers to the time, place, and circumstances under which an injury occurs. The phrase “arising out of the employment” refers to the origin or cause of the accident. J&G Cabinets v. Hennington, 269 Ark. 789, 600 S.W.2d 916 (Ark. App. 1980). In order for an injury to arise out of the employment, it must be a natural and probable consequence or incident of the employment and a natural result of one of its risks. Id. It is so well established as to require no citation that the burden of proving compen-sability rests squarely upon the claimant. More recent legislation provides that the Commission shall determine every issue on the basis of whether the party having the burden of proof on the issue has established it by a preponderance of the evidence; in so doing, the Commission must weigh the evidence impartially and without giving the benefit of doubt to any party. Ark. Code Ann. § 11-9-704(c)(2) and (4) (Supp. 1991).
Since there was evidence that the claimant in this case was required to be on duty twenty-four hours a day, the prevailing opinion correctly approves the Commission’s finding that the claimant was within the course of his employment at the time of the injury. That finding, standing alone, however, is insufficient to sustain an award. The claimant was also required to establish that his injury arose out of and was causally connected with some risk incident to the employment.
In this case, the affirming judges are dispensing with the need for proof of this second vital and statutorily-required element and applying a doctrine that they say is “a substitute for the ‘arising out of test.” Their application of this doctrine is based on a finding that the injury resulted from a “ ‘neutral risk[],’ meaning . . . [one] neither personal to the claimant nor distinctly associated with the employment.” (Emphasis added.) In my opinion, this is a complete abandonment of our prior rulings that “[t]here must be affirmative proof of a distinctive employment risk as the cause of the injury.” See, e.g., Gerber Products v. McDonald, 15 Ark. App. 226, 229, 691 S.W.2d 879, 880 (1985); Bagwell v. Falcon Jet Corp., 8 Ark. App. 192, 649 S.W.2d 841, 843 (1983).
In addition, the affirming judges reject a well-reasoned rule, accepted and applied to “Act of God” cases by the vast majority of our sister states. The general rule applicable to injuries resulting from tornadoes and windstorms is set forth in 99 C. J.S Workers’ Compensation § 250 (1958), as follows:
Injuries sustained by employees as the result of windstorms or tornadoes are not ordinarily compensable where such employees are not, as such, exposed to the risk of such harm to a greater degree than the public generally in the same vicinity, but compensation may be had where the injured employee is by reason of his employment specially exposed to injury from such causes. [Emphasis added. Footnotes omitted.]
The same rule is stated to be one of general application in 82 Am. Jur. 2d Workmen’s Compensation § 327 (1976). In J. Sandoval, Annot., Workmen’s Compensation: Injury or Death Due to Storms, 42 A.L.R.3d 385, 391-92 (1972), the author states:
Generally, most jurisdictions have taken the view that to recover compensation for an injury arising out of and in the course of employment, there must be a causal connection between such injury and the employment. Under this view, the courts have generally recognized the rule, known as the “peculiar” or “increased risk” rule, that if an employee by reason of his duties is exposed to a special or peculiar danger from the elements — that is, one greater than that to which other persons in the community are exposed — and if an unexpected injury is sustained by reason of the elements, a causal connection is thereby established between the employment and the injury and therefore the injury constitutes an accident arising out of and in the course of employment within the workmen’s, compensation acts. [Emphasis added.]
In support of the statements that this is a majority view, the author lists cases from various jurisdictions that have held in accordance with it. A number of other cases so holding are contained in footnotes in 1 A. Larson, Law of Workmen’s Compensation § 8.21(a) (1990). Indeed, as the prevailing opinion notes, our own supreme court has applied this same majority rule. See Parrish Esso Service Center v. Adams, 237 Ark. 560, 374 S.W.2d 468 (1964).
I cannot agree that this majority rule places any undue burden on workers or is somehow contrary to the spirit or purposes of our Act. It requires no more than that a worker prove that the character of his employment, or that the place at which that employment required that he be, was such as would intensify the risk of injury from extraordinary natural causes. In my judgment, this rule is much more in keeping with the purposes of our Workers’ Compensation Act than is the positional risk doctrine; at least the majority rule complies with the legislative mandate that a worker prove a causal connection between his injury and some risk of his employment. Clearly, our Act was never intended to serve as general accident or health insurance. There is no presumption that a claim comes within the provisions of the; Act, and liberal construction of the Act in no way dispenses with the need for proof of compensability. See Crouch Funeral Homev. Crouch, 262 Ark. 417, 557 S.W.2d 392 (1977); Duke v. Pekin Wood Products Co., 223 Ark. 182, 264 S.W.2d 834 (1954). Had the legislature intended to create an exception for cases involving Acts of God, it might easily have so provided.
Finally, notwithstanding the statement in the prevailing opinion that “[w]e now join those courts which accept the positional risk doctrine”, I note that affirmances by an evenly divided court, such as this case, are not entitled to precedential weight. France v. Nelson, 292 Ark. 219, 729 S.W.2d 161 (1987).
Danielson and Rogers, JJ., join in this dissent.