Indiana Law Review 334 INDIANA LA W REVIEW [Vol. 12:334 XVII. Workmen's Compensation Gary P. Price* A. Arising Out of and in the Course of Employment 1. Accident. — The major development in workmen's compensa- tion law during the survey period occurred by accident, or rather, by a resolution of what exactly is meant by "accident" within the meaning of the Indiana Workmen's Compensation Act. 1 The historical framework in which the conflicting views of "accident" evolved is best reflected in the case of Inland Steel Co. v. Almodovar. 2 The facts in Almodovar showed that the claimant had been pulling on an air hose during the course of his employment, one of his usual and ordinary tasks, when his back suddenly "gave way." In addition, medical testimony showed that the claimant had experienced prior medical problems with his back. The result of this event was an award of temporary total disability and a further find- ing of permanent partial impairment by the Industrial Board of Indiana. On appeal the employer challenged, inter alia, that aspect of the Board's decision classifying Almodovar's injuries as an accident aris- ing out of, and in the course of, the employment. The majority opin- ion affirmed the decision of the Board3 and, in so doing, distin- guished United States Steel Corp. v. Dykes,* a supreme court deci- sion which had long been cited for proposition that some unexpected or untoward incident, distinct from the employee's normal routine, is a necessary prerequisite to a compensable accident. The language normally cited states: "The mere showing that he was performing his usual routine everyday task when he suffered a heart attack does not establish a right to workmen's compensation because there was no event or happening beyond the mere employment itself." 5 Member of the Indiana Bar. J.D., Indiana University School of Law — In- dianapolis, 1977. Ind, Code §§ 22-3-2-1 to 21 (1976 & Supp. 1978). Id. § 22-3-2-2 (Supp. 1978) pro- vides, in part, as follows: [Ejvery employer and every employee, except as herein stated, shall be re- quired to comply with the provisions of this law, respectively to pay and ac- cept compensation for personal injury or death by accident arising out of and in the course of the employment, and shall be bound thereby. 2361 N.E.2d 181 (Ind. Ct. App.) transfer denied, 366 N.E.2d 169 (Ind. 1977). 3Id at 188. *238 Ind. 599, 154 N.E.2d 111 (1958), distinguished in Inland Steel Co. v. Almodovar, 361 N.E.2d at 184. *238 Ind. at 613, 154 N.E.2d at 119. 1979] SURVEY- WORKMEN'S COMPENSATION 335 In Almodovar, however the court of appeals went beyond the bare holding of Dykes and noted that the supreme court, after reviewing cases cited in a treatise on the subject,6 concluded: "In each of the above instances the fatal heart attack was preceded by some type of untoward or unexpected incident, or there was evidence of the aggravation of a previously deteriorated heart or blood vessel." 7 The court of appeals focused on the disjunctive nature of the quoted language8 and reasoned that "accident" could very well encompass an unexpected aggravation of a pre-existing condition, as well as the traditional notion of injury arising from an unexpected event.9 In a strongly worded dissent, Judge Buchanan expressed disfavor with the conclusion of the majority, stating that "accident" in workmen's compensation law had been "elasticized to the break- ing point." 10 Judge Buchanan capsulized his view of the concept of accident by stating: " 'Accident' as a word of art in Workmen's Com- pensation law has become as mysterious as the Loch Ness monster . . . and awaits the attention of the Supreme Court or the Legislature." 11 Nevertheless, despite Judge Buchanan's invitation to engage in a fishing expedition, the supreme court refused to disturb the majority opinion in Almodovar. The supreme court denied transfer of Almodovar, notwithstanding a dissent which indicated agreement with Judge Buchanan's conclusion that the Almodovar opinion con- travened Dykes. 12 In short order, the "Loch Ness monster" of workmen's compen- sation law reared its ugly head again, this time in a decision emanating from the court of appeals. In Ellis v. Hubbell Metals, Inc., 13 the facts raised issues identical to those of Almodovar. Ellis, while engaged in his normal work tasks, had received a sudden back injury. Again, the evidence showed that Ellis had suffered from a pre-existing back ailment, which had been aggravated by normal work tasks. In Ellis, however, the Board did not find that an acci- dent, within the meaning of the Workmen's Compensation Act, had occurred, and, in fact, did not treat the issue in its decision. The 6 B. Small, Workmen's Compensation Law of Indiana § 6.20 (1950), reviewed in United States Steel v. Dykes, 238 Ind. at 613, 154 N.E.2d at 119. 7238 Ind. at 613, 154 N.E.2d at 119 (emphasis added), noted in Inland Steel Co. v. Almodovar, 361 N.E.2d at 184. 8361 N.E.2d at 184. "Id. w Id. at 189 (Buchanan, J., dissenting). u Id. See also Rivera v. Simmons Co., 329 N.E.2d 39, 42 (Ind. Ct. App. 1975). 12366 N.E.2d 169 (Ind. 1977) (Pivarnick, J., dissenting). 13366 N.E.2d 207 (Ind. Ct. App. 1977). 336 INDIANA LAW REVIEW [Vol. 12:334 court of appeals reversed the decision of the Board, holding that Ellis had suffered an "accidental aggravation" of a pre-existing in- jury. 14 The reasoning which led to the court's conclusion began with the traditional definition of "accident" in the workmen's compensation area as some "mishap or untoward event not expected or designed." 15 The court then noted that the gist of the problem with the concept of accident devolved from the fact that two theories were utilized in judicial decisions: (1) The unexpected cause theory, which requires some unusual or extraordinary causal element as a prerequisite to an accident; and (2) the unexpected result theory, which requires only that the injury itself occur unexpectedly in the normal course of employment activities. 16 After setting forth those competing theories, the court of appeals expressly adopted the unex- pected result theory, holding that theory "is more in keeping with the humanitarian purposes that underlie the Workmen's Compensa- tion Act, which the courts are required to liberally construe in favor of the worker." 17 This adoption of the unexpected result theory of the causal aspect of accident now places Indiana in the solid majority of jurisdictions accepting the more liberal interpretation of the term "accident." 18 At the time of this writing, the unexpected result theory appears to be solidly entrenched in recent decisions. 19 By this point in in the evolution of the meaning of "accident," one would hope that the Loch Ness monster has been finally laid to rest, and that the term "accident" has been transformed into a concept readily understandable by all involved. The Ellis decision is a forward- looking, well-reasoned opinion in the workmen's compensation law area and should be well received by both the bench and bar. 2. Aggravation to Injury. — In a case of first impression, the Indiana Court of Appeals held, in McDaniel v. Sage,20 that an employee who seeks medical care on the work premises for a U I