Indiana Law Review XVII. Workers' Compensation Jordan H. Leibman* A . Introduction The survey period was marked by several important decisions in workers' compensation law. The Indiana Supreme Court twice reversed expansive decisions rendered by the Indiana Court of Appeals, 1 but in two other cases, the supreme court liberalized previous holdings. 2 In other cases involving aggravated pre-existing medical conditions, the court of appeals upheld the Industrial Board's denial of total permanent disability awards where partial impairment compensation had already been awarded. 3 The court of appeals also clarified the meaning of "special employer" and "borrowed servant" for workers' compensation purposes, 4 and it applied new gloss to the dual concept of "injury arising out of and in the course of employment." 5 The court of appeals also reiterated that an employer can only be held liable for medical expenses of which it has notice. 6 During the survey period, the court of appeals explored the difference between lienholder and subrogee status in the context of a third party action, 7 and in another third party case, the right to sue a fellow employee under "the same employ" rule was clarified. 8 The Industrial Board's power to determine "the fact" and "the acknowledgment of" paternity for the award of workers' compensation was also upheld by the court of appeals. 9 During its 1983 session, the Indiana General Assembly raised several benefit ceilings under the Indiana Workmen's Compensation and Occupa- *Associate Professor of Business Law, Indiana University School of Business; Former Vice-President and Plant General Manager of Imperial Packaging Company, Inc.—Indianapolis; Member of the Indiana Bar. B.A., University of Chicago, 1950; M.B.A., 1955; J.D., Indiana University School of Law—Indianapolis, 1979. l See infra notes 12-47 and accompanying text ("dust disease" last exposure statute of limitation ruled constitutional), and notes 54-91 and accompanying text (college varsity athlete on athletic scholarship ruled not employee of university). 2 See infra notes 103-21 and accompanying text (employer liable for nursing care after injury reaches permanent and quiescent state), and notes 154-66 and accompanying text (expert medical testimony need not be couched in terms of "reasonable medical cer- tainty" for workers' compensation purposes). 3 See infra notes 127-39 and accompanying text (permanent disability award after award for partial impairment requires showing of shattered wage earning capacity), and notes 140-53 and accompanying text (fact finder can reject expert testimony of disability when in conflict with other expert evidence although not from same type of medical specialist). *See infra notes 92-102 and accompanying text. 5 See infra notes 167-95 and accompanying text. 6See infra notes 196-210 and accompanying text. ySee infra notes 242-56 and accompanying text. % See infra notes 257-66 and accompanying text. 9See infra notes 267-76 and accompanying text. 427 428 INDIANA LAW REVIEW [Vol. 17:427 tional Diseases Acts, 10 and on the federal level, the Seventh Circuit Court of Appeals, in companion cases, denied "Black Lung" benefits to two claimants by approving evidence offered by the defendants to rebut the claimants' statutory pneumoconiosis presumptions." B. Occupational Disease: "Last Exposure" Rules In Bunker v. National Gypsum Co., 12 the Indiana Supreme Court finally ended Richard Bunker's vigorous challenge to the Indiana statute of limitations which governs "dust disease" 13 claims arising under the In- diana Occupational Diseases Act. 14 The Act provides that "[n]o compen- sation shall be payable ... in cases of occupational diseases caused by the inhalation of silica dust, coal dust, or asbestos dust . . . three (3) years after the last day of the last exposure to the hazards of such disease." 15 The claimant had been exposed to asbestos for a twenty-two month period in 1949-1950 while employed by National Gypsum. 16 He was trans- ferred by the company to an asbestos-free environment in 1950, where he worked until he left National Gypsum in 1966. 17 In 1976, after under- going exploratory surgery, Bunker was diagnosed as having asbestosis. 18 Although he was later able to return full-time to his job, 19 he filed a claim for disability under the "Indiana Workmen's Occupational Diseases Act." 20 Bunker's claim for workers' compensation was denied by the Industrial Board on the ground that it was filed more than three years from the 10See infra notes 277-81 and accompanying text. n See infra notes 211-41 and accompanying text. ,2441 N.E.2d 8 (Ind. 1982), appeal dismissed, 103 S. Ct. 1761 (1983). ^Pneumoconiosis, silicosis, and asbestosis are frequently called the dust diseases because they are caused respectively by coal dust, silica dust, and asbestos dust. Victims of the dust diseases have three years to bring a claim whereas claimants suffering from other workplace toxins have only two. Ind. Code § 22-3-7-9(f) (1982). i4 Ind. Code §§ 22-3-7-1 to -38 (1982 & Supp. 1983). "Id. § 22-3-7-9(f) (1982). The supreme court quoted from the earlier version, Ind. Code Ann. § 22-3-7-9(e) (Burns 1974). 441 N.E.2d at 10. The language differences between the two versions are not significant. I6441 N.E.2d at 9-10. xl Id. at 10. "Id. " Id. at 16 (Hunter, J., dissenting). 20 Id. at 9 (referring to Ind. Code §§ 22-3-7-1 to -38 (1982 & Supp. 1983)). Bunker also brought an action for common law negligence against National Gypsum. See Bunker v. National Gypsum Co., 406 N.E.2d 1239 (Ind. Ct. App. 1980). See also Leibman, Workers' Compensation, 1981 Survey of Recent Developments in Indiana Law, 15 Ind. L. Rev. 453, 466-69 (1982). He argued he had such a claim because his exposure to asbestos antedated a 1963 amendment to the Indiana Workmen's Occupational Diseases Act which made it the exclusive remedy for employees seeking relief from their employers for health impairments caused by toxic agents found in the workplace. The court ruled that Bunker would have to seek his remedy under the Act. 406 N.E.2d at 1241. 1 984] SUR VEY— WORKERS ' COMPENSA TION 429 date of his last exposure while an employee of National Gypsum. 21 Bunker responded that his exposure to asbestos fibers was a continuous one, because the asbestos dust remained in his lungs and gastro-intestinal system and was never excreted. Therefore, "the last day of the last exposure" had not yet arrived. 22 The Industrial Board rejected Bunker's interpreta- tion of the statute by finding that "the legislature cannot be said to have intended the term iast exposure' to mean other than 'last exposure' during and 'in the course of employment.' " 23 For Bunker, that "last exposure" would have been in 1950. In so ruling, the Board rejected Bunker's argument that workers' com- pensation statutes must always be construed consistent with the humane objectives of the legislation. 24 Instead, the Industrial Board followed a purposive approach, stating that the legislature had intended a scheme which would provide relief for workplace accidents and health impairments which could be " 'currently funded out of reduced profits and/or increased price to the consumer of the product of [the] business. Without a specific reasonable time limitation, the rate making process locks [sic] the vital component of predictable losses until some other statistical pattern can be established.' " 25 On appeal, Bunker argued that if the court were to hold that his claim was barred by the "last exposure" provision of the Act, that provi- sion should be held to be unconstitutional on due process grounds. 26 The 21 441 N.E.2d at 9. The Indiana Workmen's Occupational Diseases Act grants the In- dustrial Board jurisdiction to administer the compensation provisions of the Act. Ind. Code § 22-3-1-3 (1982). "See Brief for Appellant at 7, Bunker v. National Gypsum Co., 426 N.E.2d 422 (Ind. Ct. App. 1981) [hereinafter cited as Appellant's Brief]. 23 Id. at 3 (quoting Award from Industrial Board of Indiana, Dec. 26, 1979). 24See F. Marshall, A. King & V. Briggs, Sr., Labor Economics (4th ed. 1980). "The objective of these statutes was to assure benefits to workers and their families in the event of work-related injuries or death while, at the same time, limiting the actual liability of employers to the size of the worker compensation payment." Id. at 467. References to the need for liberal construction of workers' compensation laws so as to effectuate their humane objectives are found in the following Indiana cases (other than Bunker) which were decided during the survey period: Rensing v. Indiana State Univ. Bd. of Trustees, 444 N.E.2d 1170, 1172 (Ind. 1983); Talas v. Correct Piping Co., 435 N.E.2d 22, 28 (Ind. 1982); Indiana Bell Tel. Co. v. Ernst, 444 N.E.2d 1258, 1260 (Ind. Ct. App. 1983); Suburban Ready Mix Concrete v. Zion, 443 N.E.2d 1241, 1242 (Ind. Ct. App. 1983); Rensing v. Indiana State Univ. Bd. of Trustees, 437 N.E.2d 78, 84 (Ind. Ct. App. 1982), rev'd, 444 N.E.2d 1170 (Ind. 1983); Goins v. Lott, 435 N.E.2d 1002, 1006 (Ind. Ct. App. 1982). "Appellant's Brief, supra note 22, at 3 (quoting Award from Industrial Board of Indiana, Dec. 26, 1979). "Appellant's Brief, supra note 22, at 16-21. Bunker also raised two equal protection arguments. Id. at 21-28. With respect to the first, the court stated: "Nor could it be ra- tionally urged that the legislature intended to divide exposed workers for purposes of coverage into those continually exposed for the necessary 20 to 30 year gestation period and those not." 426 N.E.2d at 425 n.7. The court did not address the second of the Act's classifica- tions identified by Bunker as invidious—the distinction between radiation victims and dust disease victims. Under the Act, the former are given the benefit of a "discovery rule," 430 INDIANA LAW REVIEW [Vol. 17:427 Indiana Court of Appals held that the three year statute of limitations denied Bunker due process of law by effectively denying him a right to recovery. 27 The court cited medical studies which demonstrated that the symptoms of asbestosis were often first manifested many years after the victim's initial threshold exposure to asbestos. 28 The court concluded that "[i]n view of the discovery of this factual information about the disease since the legislature imposed the . . . limitation in 1937, it appears to us that the statute can no longer stand." 29 As predicted in last year's Survey Article, 30 the Indiana Supreme Court reversed. 31 The court found two errors in the decision below. One was the court of appeals' use of "medical evidence found outside the record of this case to justify their opinion." 32 The second was the lower court's holding that the last exposure provision was unconstitutional. 33 With respect to the court of appeals' independent search for medical evidence, the supreme court stated that appellate review of lower courts' factual findings " 'is limited to those matters contained in the record which were presented to and considered by the fact-finder.' " 34 With respect to the lower court's finding that the statute was violative of due process, the supreme court gave great weight to the presumption of constitutionality that must be accorded an act of the legislature, especially in the case of statutes of limitations where a judgment as to the reasonableness of the limitation period must be made. 35 The supreme court stated that "[t]he legislature has the sole duty and responsibility to determine what con- stitutes a reasonable time for the bringing of an action unless the period allowed is so manifestly insufficient that it represents a denial of justice." 36 In upholding the statute, the supreme court explained that to do other- wise would frustrate the legislature's purpose of creating a limitations period for occupational disease claims and would be a "blatant abuse of judicial power." 37 An interesting question is raised by the supreme court's analysis. The court reviewed the medical evidence cited by the court of appeals and while the latter frequently find themselves barred by the three year statute of limitations before they can possibly discover their illnesses. Ind. Code § 22-3-7-9(0 (1982). 27426 N.E.2d at 425. 2i Id. at 424-25 & n.6. 29 Id. at 425. ™See Coriden, Workers' Compensation, 1982 Survey of Recent Developments in Indiana Law, 16 Ind. L. Rev. 433, 434 (1983). 3I 441 N.E.2d at 14. "Id. at 11. "Id. "Id. at 14 (quoting Hales & Hunter Co. v. Norfolk & W. Ry., 428 N.E.2d 1225, 1227 (Ind. 1981)). 35441 N.E.2d at 12. 16 Id. The court of appeals apparently found the three year limitations period to be "manifestly insufficient." "Id. at 13-14. 1 984] SUR VEY— WORKERS ' COMPENSA TION 43 1 noted that the incidence of asbestosis appeared to be a function of ex- posure: the greater the exposure, the greater the chance of disease. 38 Because the respondent had been exposed for a period of only twenty- two months, the supreme court reasoned that "a legislator standing in the past may have reasonably concluded that Respondent would probably never be afflicted by asbestosis and therefore would probably never be in need of protection or relief." 39 If, however, as the court of appeals found, later medical discoveries proved that the 1937 legislators had miscalculated the true probabilities of disease, 40 would the once constitu- tional statute become violative of due process in light of the new facts? The supreme court gave its answer: "It is within the duties and respon- sibilities of the legislature to keep itself advised of the general progress of medical learning and to make the determination as to whether or not new or revised legislation is needed." 41 The court failed to recognize the doctrine of judicial self-restraint in this case, according to Justice Hunter in dissent. 42 He argued that reaching the constitutional question was inappropriate in this case because "the record . . . [was] void of the development . . . vital to our resolution of constitutional issues." 43 He would have preferred either a trial de novo on the constitutional issues, 44 or a holding that Bunker did not meet the statutory requirement of a "disablement" and therefore had no claim for compensation. 45 Although it was true that Bunker did return to full-time employment following exploratory surgery in 1976, he was totally disabled for a four week period at the time. 46 Given that Bunker had pressed the claim that he was disabled, to rule that his four week temporary total inability to earn wages was not a disablement under the Act could lead to serious injustice in other cases. 47 The effect of the Indiana Supreme Court's ruling in Bunker was quickly felt. In Woodworth v. Lilly Industrial Coatings, Inc., 46 the claim- ant had contracted leukemia which he alleged was caused by his exposure to carcinogenic agents while employed at Lilly. The date of claimant's last exposure was March 1, 1977, but he was not actually disabled until "Id. at 14. i9 Id. (emphasis added). *°See supra note 29 and accompanying text. 4, 441 N.E.2d at 14. * 2 Id. at 14-15 (Hunter, J., dissenting). Ai Id. at 17. 44 Id. at 19. 45 Id. at 15-18. "Record of the Proceedings at 5, Bunker v. Nat'l Gypsum Co., 426 N.E.2d 422 (Ind. Ct. App. 1980) (Industrial Board of Indiana, Form 9, claim for compensation "for total disability during exploratory surgery and post-operative recovery"), rev'd, 441 N.E.2d 8 (Ind. 1982), appeal dismissed, 103 S. Ct. 1761 (1983). 47The United States Supreme Court dismissed Bunker's appeal for the lack of a federal question. Bunker v. Nat'l Gypsum Co., 103 S. Ct. 1761 (1983). 48446 N.E.2d 646 (Ind. Ct. App. 1983). 432 INDIANA LAW REVIEW [Vol. 17:427 about March, 1980. 49 In this case the limitation provision attacked by the claimant was the general two-year "last exposure' ' rule, 50 rather than the three-year period accorded "dust diseases." 51 Relying on the court of appeals' decision in Bunker, the claimant argued that the two-year limitation period was violative of due process. 52 Following the supreme court's reversal in Bunker, the court of appeals affirmed the Industrial Board's dismissal of the claim. 53 C. The Employer-Employee Relationship 1. Athletic Scholarship.—In order for there to be a compensable event, an employer-employee relationship between the claimant and the entity from which he or she is seeking workers' compensation must be found to exist. 54 Consistent with the policy that workers' compensation laws are to be liberally construed to effectuate the humane objectives of the legislation, 55 a measure of liberality is required in defining the term employee. 56 That there are limits to this process was demonstrated in the case of Rensing v. Indiana State University Board of Trustees. 51 Claimant Rensing was a varsity football player at Indiana State University. 58 He incurred a spine injury during practice which left him a quadriplegic. 59 Rensing, prior to his matriculation at Indiana State, had entered into a scholarship agreement with the university trustees which he argued was equivalent to a "contract of employment." 60 In exchange for playing football, he was to receive a package consisting of financial assistance and other benefits. 61 The agreement provided that, if he were "Id. at 647. 50Ind. Code § 22-3-7-9(0 (1982) provides in pertinent part: "No compensation shall be payable for or on account of any occupational diseases unless disablement . . . occurs within two (2) years after the last day of the last exposure to the hazards of the disease. ..." 51 See supra note 15 and accompanying text. 52446 N.E.2d at 647. "Id. at 648. For a full discussion of Bunker see Leibman & Dworkin, A Failure of Workers' Compensation and Tort: Bunker v. National Gypsum Co., 18 Val. U.L. Rev. (1984). 54 Ind. Code § 22-3-2-2 (1982). See Mid-Continent Petroleum Corp. v. Vicars, 221 Ind. 387, 47 N.E.2d 972 (1943); Meek v. Julian, 219 Ind. 83, 36 N.E.2d 854 (1941); Taylor v. Brainard, 111 Ind. App. 265, 37 N.E.2d 714 (1941). "See supra note 24. 56 Daniels v. Terminal Transp. Co., 125 Ind. App. 28, 32, 119 N.E.2d 554, 556 (1954). The Indiana Workmen's Compensation Act states: "The term 'employee' means every per- son, including a minor, in the service of another, under any contract of hire or appren- ticeship, written or implied, except one whose employment is both casual and not in the usual course of the trade, business, occupation or profession of the employer." Ind. Code § 22-3-6- 1(b) (1982). 57444 N.E.2d 1170 (Ind. 1983). "Id. at 1170. For a summary of the details of the case, see id. at 1170-72. "Id. at 1170. 60 Id. at 1172. 6, Id. at 1171. 1 984] SUR VEr—WORKERS ' COMPENSA T/ON 433 injured, his financial assistance would continue, but he would still be obligated to provide services to the athletic department of the university/ 2 The Industrial Board rejected his claim for workers' compensation, finding that he had failed to prove the existence of an employer-employee rela- tionship between himself and the university trustees. 63 The Indiana Court of Appeals reviewed the Industrial Board's award and in a 2-1 decision found sufficient evidence of an employment rela- tionship between the parties within the meaning of the statute. 64 First, the court noted that it was conceded by the university trustees that some type of contractual relationship existed between them and Rensing. 65 After finding that Rensing was not covered by the classes of employees express- ly exempted from coverage under the Indiana Worker's Compensation Act, the court addressed the question of whether there was an employ- ment contract between the parties. 66 The court observed that the financial aid agreement called upon Rensing to play football in exchange for finan- cial aid, or if injured, to provide alternative services. 67 Rensing 's benefits were to continue as long as he "was 'otherwise eligible to compete.' " 68 The court also observed that "scholarships or similar benefits may be viewed as pay pursuant to a 'contract of hire' in the analogous con- text of unemployment benefits." 69 The Unemployment Compensation Act provides for liability for contributions on behalf of individuals attending college " 'who, in lieu of remuneration . . . receive either meals, lodging, books, tuition or other education facilities.' " 70 In addition, the court found that the financial aid agreement impliedly gave the university trustees the power to withdraw benefits if it was later found that Rensing had misrepresented his intention to play football. 71 The court, finding no Indiana cases on point, cited a California case in which the next of kin of a deceased scholarship athlete were awarded death benefits under the California workers' compensation law. 72 That athlete, however, also had a part-time job with the college. 73 In a Col- orado case, a student-athlete was required to play football in exchange for a job as manager of the university's tennis courts. 74 When he was 62 Id. "Id. at 1172. 64437 N.E.2d 84, 87 (Ind. Ct. App. 1982), rev'd, 444 N.E.2d 1170 (Ind. 1983). 65 Id. at 83. 66 Id. at 84. 67 Id. at 85. 6 *Id. 69 Id. 70 Id. (quoting Ind. Code § 22-4-6-2 (1982)). "437 N.E.2d at 85. 12 Id. at 86 (citing Van Horn v. Industrial Accident Comm'n, 219 Cal. App. 2d 457, 33 Cal. Rptr. 169 (1963)). 73437 N.E.2d at 86. "Id. at 87 (citing University of Denver v. Nemeth, 127 Colo. 385, 257 P.2d 423 (1953)). 434 INDIANA LAW REVIEW [Vol. 17:427 injured during football practice, the Colorado Supreme Court upheld his workers' compensation award. The court held that the injury was an in- cident of his employment. 75 In another Colorado case, however, the next of kin of a student-athlete who was on an athletic scholarship were denied compensation because the evidence failed to disclose an obligation on the athlete's part to play football. 76 The Indiana Court of Appeals concluded that in the two foreign cases in which compensation was awarded, as well as in the instant case, benefits received were conditioned upon ' 'athletic ability and team participation.' ' 7? Therefore, the court found a contract of hire existed and Rensing was an employee within the meaning of the Indiana statute. 78 A final issue addressed by the court was whether Rensing's contract for hire should be classified as " 'casual and not in the usual course of the trade, business, occupation or profession of the employer.' " 79 Such a finding would remove Rensing from the statute's coverage. The court found Rensing's activities non-casual because of their periodical regulari- ty and the importance of the athletic program to the university. 80 Finally, the court found football to be a part of the university's occupation. 81 The Indiana Supreme Court granted transfer and reversed in a unanimous decision. 82 The court stated that for there to be an employ- ment relationship, there must be "an intent that a contract of employ- ment, either express or implied, . . . exist." 83 The court examined the documents which formed the agreement and found no such intent. The primary document relied on by the court was the National Col- legiate Athletic Association (NCAA) constitution and bylaws which the agreement incorporated by reference. The NCAA constitution expressly distinguishes intercollegiate sports from professional sports, viewing the former "as part of the educational system." 84 A student may not accept any pay, nor can an institution "condition financial aid on a student's ability as an athlete." 85 The benefits Rensing received under the grant were not considered pay under NCAA rules, nor did they affect his eligibility. The Internal Revenue Service has ruled that such benefits are not taxable and are to be treated in the same manner as an award under an academic scholarship. 86 75437 N.E.2d at 87. 16 Id. (citing State Compensation Ins. Fund v. Industrial Comm'n, 135 Colo. 570, 314 P. 2d 288 (1957)). 77 437 N.E.2d at 87. 1% Id. (referring to Ind. Code § 22-3-6-l(b) (1982)). 79437 N.E.2d at 87 (quoting Ind. Code § 22-3-6-l(b) (1982)). *°437 N.E.2d at 88-89. "Id. "444 N.E.2d at 1175. "Id. at 1173. "Id. "Id. ""Id. 1 984] SUR VEY— WORKERS ' COMPENSA TION 43 5 The court noted that the Indiana General Assembly has granted the boards of trustees of state educational institutions only the power to award scholarships that are ' 'reasonably related to the educational purposes and objectives of the institution and in the best interests of the institution and the state." 87 No such requirement is placed on the hiring of part- time employees. Furthermore, unemployment benefit contributions are assessed not on scholarship grants, but only on in-kind benefits conferred on regular job holders in lieu of pay. 88 The court also stated that the university's receipt of benefits from its athletic program did not mean that Rensing was in the service of the school. 89 Moreover, other jurisdictions have held that student leaders, stu- dent athletes, student resident-hall assistants and the like were not employees unless they were also employed in a university job. 90 The court found three essential elements of an employment relation- ship lacking in the agreement between the university trustees and Rensing—the lack of intent to enter a contract for hire, the lack of pay for performance, and the lack of the employer's right to discharge on the basis of performance. 91 The decision of the Industrial Board was, therefore, reinstated. 2. Borrowed Servant.—In Beach v. Owens-Corning Fiberglas Corp., 92 the plaintiff was a general employee of U.S. Piping but was working on the premises of Owens-Corning for a period of several months pursuant to a contract between the companies. 93 When Beach was injured on the job, he brought suit (presumably alleging negligence) against Owens- Corning. The defendant's motion for summary judgment was granted on the theory that the plaintiff was a borrowed servant, and any claim for relief against Owens-Corning had to be brought under the Indiana Workmen's Compensation Act. 94 The federal district court ruled that the question "whether plaintiff [was] an employee or independent contrac- tor" was a matter of law and that summary judgment was appropriate. 95 In applying a test of employer-employee relationship from Fox v. Con- tract Beverage Packers, Inc., 96 the court found that while Owens-Corning, (1) did not have the right to discharge Jackie Beach; (2) did not pay him his wages directly; (3) did not supply his tools; and (4) had no formal contract of employment %% ld. at 1173-74. i9 Id. at 1174. 90 Id. 9x Id. 92542 F. Supp. 1328 (N.D. Ind. 1982). 93 Id. at 1329-30. 9 *Id. at 1331. 9i Id. at 1329 (citing Downham v. Wagner, 408 N.E.2d 606 (Ind. Ct. App. 1980)). 96398 N.E.2d 709 (Ind. Ct. App. 1980). 436 INDIANA LAW REVIEW [Vol. 17:427 with plaintiff; it (1) did control the place and the manner in which plaintiff was pertorming his work; (2) did exercise direct super- vision over him at the time of the accident; (3) did contract with U.S. Piping for his services . . . ; and (4) had the right to and did control the boundaries of his work. 97 One additional factor from Fox was whether the parties believed that an employer-employee relationship existed. 98 Beach claimed that he held no belief that Owens-Corning was his employer. 99 The court found, however, the plaintiff's acquiescence in the direct supervision by Owens- Corning for a period of several months was sufficient to demonstrate an implied service contract between the parties. 100 The court stated that the decisive Indiana ''test for the existence of a master-servant relationship is 'the right to command the act and to direct and control the means, manner or method of performance.' " 101 Thus, Owens-Corning, as a matter of law, was held to be a special employer of the plaintiff. 102 D. Permanent and Quiescent State 1. Permanent Impairment—Nursing Care.—Workers' compensation includes two components: the first is compensation to victims for economic loss as a result of injuries arising out of and in the course of their employ- ment; the second is compensation to injured employees to cover expenses they incur for medical services and supplies. Both of these compensation components are limited. Economic loss, whether as a result of disability (the inability to work and earn wages) or impairment (the loss of physical function), 103 is limited under the Indiana statute to a total of 500 weeks of compensation at a percentage of the average weekly wage. 104 Medical expense compensation is also limited, in theory at least, by the concept that the employer is not liable for medical costs once it is no longer possi- ble "to limit or reduce the amount and extent of [the victim's] impairment." 105 That point may not be reached, however, even after the 97 542 F. Supp. at 1330. 9 *Id. "Id. ,00 Id. l0, Id. (quoting Wabash Smelting, Inc. v. Murphy, 134 Ind. App. 198, 209, 186 N.E.2d 586, 592 (1963)). I02 542 F. Supp. at 1331. ,01 See Talas v. Correct Piping Co., 435 N.E.2d 22, 26 (Ind. 1982). 04 Ind. Code § 22-3-3-8 (1982) provides for a maximum non-medical benefit amount set by a percent of an average weekly wage multiplied by 500. The maximum average weekly wage and maximum non-medical benefit limits are established by the Indiana Workmen's Compensation Act. Id. § 22-3-3-22 (1982 & Supp. 1983). These amounts for 1983 and beyond have recently been raised. See infra notes 277-80 and accompanying text. i05 Ind. Code § 22-3-3-4 (1982). This section provides four time periods during which a claimant may be awarded expenses of medical and nursing services. Talas v. Correct Piping Co., 435 N.E.2d 22, 26 (Ind. 1982). The third period is "after an adjudication or award 1 984] SUR VEY— WORKERS ' COMPENSA TION 431 i victim's injury is said to be in a permanent and quiescent state. In Talas v. Correct Piping Co., 106 the Indiana Supreme Court defined the scope of this statutory liability for medical expense compensation. Woodrow Talas' industrial injury reduced him to a traumatic quadriplegic. 107 After hospitalization and a period of institutional rehabilita- tion, he was returned home where he received around-the-clock nursing care. The employer paid for the care for several months. The parties executed a Form 12 agreement which provided that after December 6, 1978, Talas "had sustained both '100% permanent impairment of the man as a whole and 100% total permanent disability.' " 108 This stipulation meant that Talas could receive the maximum compensation for his economic losses for the maximum period under the statute. 109 With respect to medical expenses, the Form 12 agreement stipulated " 'that the injury is in a permanent and quiescent state.' " uo However, it was also agreed " 'that the question of continuing treatment for the employee's injuries including . . . nursing services and supplies' " was to be " 'left to the determination of the Industrial Board upon proper hearing . . . .' " in Talas filed an emergency petition for an award for nursing care "as necessary to sustain and maintain his life." 112 A single hearing officer ordered the employer to pay Talas for medical and nursing care necessary to reduce his impairment or disability. 113 Upon of permanent impairment, as the industrial board may deem necessary to limit or reduce the amount and extent of impairment." This period was the only one held to be rele- vant to Talas' injuries. Id. at 27. 106435 N.E.2d 22 (Ind. 1982). 107For a review of facts of the Talas case, see id. at 23-26. 10S Id. at 26 (quoting the parties' agreement). The court distinguished a finding of "100% permanent impairment of the man as a whole" from "permanent total impairment," the latter being a phrase which the court stated "would necessarily describe death." Id. at 27. The court, therefore, reasoned that the wording of the agreement must be read as "permanent partial impairment" which falls within the statutory period found applicable in this case. Id. See infra note 109. 109Compensation for permanent partial impairment is calculated by taking a percent- age of an average weekly wage times a specified number of weeks. Ind. Code § 22-3-3-10 (1982). But a worker can also recover a total permanent disability award. Id. § 22-3-3-22 (1982 & Supp. 1983). It has been argued that under Perez v. United States Steel Corp., 172 Ind. App. 242, 247, 359 N.E.2d 925, 929 (1977), vacated, 426 N.E.2d 29 (Ind. 1981) (not addressing this issue), an injured employee could be entitled to both types of awards. Coriden, Compensation, Disability, Impairment, Indiana Workmen's Compensation 1983 § 11, at 8 (Indiana Continuing Legal Education Forum 1983). But cf. Duncan v. George Moser Leather Co., 408 N.E.2d 1332, 1336 & n.5 (Ind. Ct. App. 1980) (citing Perez to support proposition that duplication of awards isn't permissible, but that Ind. Code § 22-3-3-27 (1982) permits the Industrial Board to modify or change a permanent partial impairment award to a permanent total disability award). M0435 N.E.2d at 24 (quoting the parties' agreement). '"435 N.E.2d at 24 (quoting the parties' agreement). Il2435 N.E.2d at 24. ni Id. 438 INDIANA LAW REVIEW [Vol. 17:427 appeal, the full Industrial Board overruled and directed that Talas receive none of the aid he had requested." 4 The Board's findings revealed con- clusively that no additional medical or nursing care would improve Talas' condition. 115 However, evidence in the record was equally clear that around-the-clock care was essential to prevent his condition from serious- ly deteriorating." 6 The employer's position, which was adopted by the Industrial Board, was that " 'there was no medical treatment which was necessary to limit or reduce the amount and extent of Talas' impairment or disability and that the amount and extent of Talas' impairment would never be reduced.' "" 7 The supreme court adopted a broader view." 8 Although the supreme court agreed that nothing could be done to "limit or reduce the amount and extent" of Talas' quadriplegia, it found that he was unable to care for himself. The court found further that absent special care and assistance, Talas would be more susceptible to life threatening medical disorders. In view of the remedial nature of the Workmen's Compensa- tion Act and the liberal construction to be accorded it, we con- clude that the impairment of Talas's physical functions would be limited, if not reduced, by nursing care, as these terms are utilized in the Act. That conclusion follows even though the care will not cure Talas's quadriplegia, for in the circumstances present here, any other construction would be inimical to the humanitarian pur- poses of the Act." 9 The court stated its reasoning was limited to (( the circumstances pres- ent here," 120 yet it seems clear that its ruling will make Indiana employers generally liable for maintenance care necessary to keep an incurable in- jury at its permanent and quiescent state once that stage has been reached. The court also ruled that professional nursing care was not necessarily required if lay help would do, but a family member could not be re- quired to give up gainful employment in order to provide that help. 121 One result of the Talas case is to bring Indiana more in line with other ni id. ns Id. at 27. n6 Id. at 27-28. ,n Id. at 25 (quoting Industrial Board's findings). "Talas appealed, partly on the ground that the Industrial Board had failed to make adequate findings of fact. The Supreme Court of Indiana agreed, and twice remanded the case to the Industrial Board for further factual findings. Id. at 23. See Talas v. Correct Piping Co., 426 N.E.2d 26 (Ind. 1981); Talas v. Correct Piping Co., 416 N.E.2d 845 (Ind. 1981); see also Leibman, Workers' Compensation, 1981 Survey of Recent Developments in Indiana Law, 15 Ind. L. Rev. 453, 455-58 (1982). n9435 N.E.2d at 28-29 (emphasis in original). The court cites fifteen cases from other jurisdictions supporting its reasoning. Id. at 29 n.l. ]20 Id. at 29 (emphasis in original). I2 7tf. at 30. 1 984] SUR VEY— WORKERS ' COMPENSA TION 439 jurisdictions which have substantially extended the limitations on workers' compensation awards for medical expenses. 2. Partial Impairment—Total Disability. —Until a workplace injury reaches a permanent and quiescent state, the Indiana Workmen's Com- pensation Act 122 provides for an award of temporary total disability compensation. 123 After the injury is adjudged to be permanent and quies- cent, a determination of the extent of impairment is made and the claim- ant receives a statutory award to compensate for the loss of physical func- tion represented by the impairment. 124 The statute provides for awards for a specified number of weeks of compensation for loss of parts of the body as well as similar awards for partial loss of bodily function which can be expressed as a percentage impairment. 125 A final determination is then made as to whether the claimant suffers permanent total disable- ment as a result of the impairment; that is, whether the claimant is capable of reasonable employment. When the claimant has been adjudged to be 100% permanently impaired, a finding of total disability generally follows as a matter of course, as was the case in Talas. 126 But where the claimant suffers partial impairment, the far more common case, the issue of per- manent total disability is more difficult to resolve. In Hale v. Mossberg/Hubbard, 111 the claimant, Hale, a female janitor, suffered a back injury for which she received temporary total disability compensation. On January 12, 1979, Hale's doctor expressed the opinion that the claimant's injuries had become permanent and quiescent. 128 Upon receiving additional medical testimony, the single hearing judge found that the claimant suffered a " 'permanent partial impairment of 22% of the body as a whole, apportioned 7% as pre-existing and 15% as a result of the industrial accident . . . .' " 129 In conclusion, the Industrial Board found " 'insufficient evidence of permanent total disability .... The spinal fusion is an accepted medical treatment for the condition suffered and limits employment, but does not totally prevent similar factory work, where such is available . . . .' " 13 ° Upon review, the Indiana Court of Appeals affirmed. 131 To justify a finding of permanent total disability, the court stated that the claimant had the burden of demonstrating her inability to engage in employment 122 Ind. Code §§ 22-3-1-1 to -10-3 (1982 & Supp. 1983). 123 Jrf. § 22-3-3-8 (1982). >24 Id. § 22-3-3-10. l2s Id. § 22-3-2-10(b)(6). This subsection provides: "In all other cases of permanent partial impairment, compensation proportionate to the degree of such permanent partial impairment, in the discretion of the Industrial Board, not exceeding five hundred (500) weeks." s See supra note 109. 7 432 N.E.2d 409 (Ind. Ct. App. 1981). x2% Id. at 410. 9 Id. at 411 (quoting Industrial Board's findings). °432 N.E.2d at 411 (quoting Industrial Board's findings). m432 N.E.2d at 410, 414. 440 INDIANA LAW REVIEW [Vol. 17:427 of reasonable types. 132 An award for permanent total disability requires a showing of disability " 'which so destroys or shatters a workman's wage earning capacities as to leave him unable to resume reasonable types of employment for the remainder of his life .... [T]otal permanent disability must be taken to require a greater incapacity than that produced by any of the other scheduled harms.' " 133 The Industrial Board had found that the employer was unable or unwilling to tender work within the current physical limitations of the claimant. 134 Hale pointed to that fact, to the evidence of her difficulty in obtaining employment elsewhere (once she admitted to prospective employers that she had had a spinal fusion), and to her lack of training, expertise, work experience and education to justify a finding of a permanent total disability. 135 The court found the evidence insufficient to prove "that the spinal fusion was considered so disabling that she could not obtain any reasonable employment." 136 The essence of this holding is that compensation for the permanent harm caused by the accident, once the condition becomes permanent and quiescent, will generally come in the form of an impairment award. The court of appeals found sufficient evidence in the record to sup- port the Industrial Board's finding of a 7% pre-existing impairment. 137 The effect of that ruling was to reduce her impairment award from 22% to 15%. 138 How and why this apportionment is made is discussed in the next section. 139 E. Aggravation of Pre-existing Condition 1. "Apportionment" Statute.—In Rork v. Szabo Foods,* 40 the claim- ant alleged that as a result of a fall she experienced in April, 1977, she suffered a sprained ankle, injured vertebrae, and complications. 141 Rork also alleged that her attempts to return to work had failed because contin- uing pain prevented her from fulfilling her work duties. 142 The Industrial Board found that following the accident, the claimant suffered " 'a 20% permanent partial impairment of the body as a whole of which 10% is causally connected to the stipulated industrial accident.' " 143 The Board ,i2 Id. at 413. m /tf. at 412 (quoting White v. Woolery Stone Co., 181 Ind. App. 532, 534, 396 N.E.2d 137, 139 (1979) (quoting B. Small, Workman's Compensation Law of Indiana § 9.4, at 244 (1950))). I34432 N.E.2d at 411. ni Id. at 412. ,u Id. n 'Id. nt Id. at 413. ,i9See infra notes 140-65 and accompanying text. I40439 N.E.2d 1338 (Ind. 1982). ,41M at 1339. 142 Id. ,iZ Id. at 1341 (quoting Industrial Board's Additional Findings of Fact) 1 984] SUR VEY— WORKERS ' COMPENSA TION 44 1 further found that the claimant had failed to establish her permanent total disability. The claimant appealed, arguing that her accident had caused greater than a 10% impairment, and that she had become permanently totally disabled. 144 In addressing the degree of impairment argument, the court cited sec- tion 12 of the Indiana Workmen's Compensation Act, the "apportion- ment" statute. 145 That section provides that where a permanent injury increases or aggravates a pre-existing permanent injury, the Industrial Board must determine the extent of pre-accident impairment and the amount of additional permanent impairment caused by the accident, "and shall award compensation only for that part of such injury, or physical condition resulting from the subsequent permanent injury." 146 Although conflicting medical testimony appeared in the record, the court stated that it was not its prerogative to reweigh the evidence. 147 The Industrial Board's finding of a 10% impairment as a result of the aggravation to Rork's pre-existing condition was greater than one expert's estimate, but less than another's. 148 On these facts the court refused to disturb the Industrial Board's finding of a 10% impairment. 149 In reviewing Rork's claim for total permanent disability, the court noted that the claimant has the burden of establishing such a finding by proving an inability to perform employment of reasonable types. 150 Reasonableness is to be assessed by the availability of opportunities and the claimant's physical and mental fitness. 151 Rork's claim was premised on the testimony of a neurologist. That doctor, on the basis of his estimate of the pain suffered by the claimant, found "that she suffers a '100% impairment and total disability which is likely to be a permanent total disability with respect to pursuing gainful employment.' " 152 The court rejected Rork's argument that her total permanent disability was conclu- sively established because this evidence was unrebutted by another neurologist. It stated that the fact finder may reject expert opinion testimony and noted that there was other contradictory expert medical testimony. Based on these facts and the lack of evidence demonstrating the unavailability of work opportunities for which Rork was suited, the court upheld the Industrial Board's finding that Rork did not suffer per- manent total disability. 153 I44M M5M at 1342 (citing Ind. Code § 22-3-3-12 (1982)). ,46Ind. Code § 22-3-3-12 (1982). I47439 N.E.2d at 1342. l48 /tf. "'Id. at 1342-43. [50 Id. at 1343 (quoting Perez v. United States Steel Corp., 426 N.E.2d 29, 31 (Ind. 1981) (quoting Perez v. United States Steel Corp., 172 Ind. App. 242, 245-46, 359 N.E.2d 925, 927-28 (1977))). m439 N.E.2d at 1343. ]$2 Id. (quoting testimony of Dr. Smith). t51 Id. 442 INDIANA LAW REVIEW [Vol. 17:427 2. To a Reasonable Medical Certainty.—In Noblesville Casting Divi- sion of TRW, Inc. v. Prince, 154 the claimant alleged that an industrial accident had aggravated an existing back condition. The Industrial Board affirmed the hearing officer's award of medical expenses, temporary total disability, and permanent partial impairment. 155 On review, the Indiana Court of Appeals reversed the award because the expert testimony failed to establish to a reasonable medical certainty that the claimant's injuries were caused by the accident. 156 In an exhaustive analysis, the supreme court reversed, 157 stating: "We here reject the notion that the admissibility and probative value of medical testimony is dependent upon the expert witness's ability to state conclu- sions in terms of 'reasonable medical certainty . . . .' " 158 The court's ruling that expert medical testimony couched in terms of "possibility" could be probative is discussed elsewhere in this survey issue. 159 The prac- tical result of the holding should be an easing of a claimant's burden of establishing impairment and disability, especially in complex medical cases where estimates have to be made of the additional amount of in- jury that has been added to a pre-existing injury. The problem is analogous to that in the adoption of comparative fault provisions where the fact finder must apportion fault between parties. Expert evidence couched in terms of probabilities or possibilities in both of these situations is likely to aid the fact finder. 160 Because the court of appeals had held for the employer under the "reasonable medical certainty" analysis, it did not reach several additional issues raised in Noblesville Casting. 161 The supreme court, in light of its rejection of the reasonable medical certainty standard, addressed these additional issues. First, the court held it was unnecessary for the Industrial Board to distinguish an "acceleration" of an existing degenerative condition from an "aggravation" of an existing quiescent one. 162 The court stated that where an industrial accident increases an existing impairment, the statute only requires the Industrial Board to determine " 'the extent of the ag- gravation or increase resulting from the subsequent permanent injury.' " 163 l54438 N.E.2d 722 (Ind. 1982). >5i Id. at 725. ,56424 N.E.2d 1055 (Ind. Ct. App. 1981), rev 'd and vacated, 438 N.E.2d 722 (Ind. 1982). I57438 N.E.2d at 737. This was a 2-2 decision with two justices concurring in the result only. Id. (Pivarnik, J., concurring). Justice Pivarnik, in his concurring opinion, stated that expert opinions based solely on "possibilities" were of no probative value. Id. Justice DeBruler did not participate. Id. l "Id. at 726. 159For a further discussion of this ruling, see Tanford, Evidence, 1983 Survey of Re- cent Developments in Indiana Law, 17 Ind. L. Rev. 197, 211 (1984). I60438 N.E.2d at 731-32. l6l Jd. at 732. i62 Id. at 734. 163 Id. (quoting Ind. Code § 22-3-3-12 (1982)). 1 984] SUR VEY— WORKERS ' COMPENSA TION 443 The court also rejected Noblesville Casting's argument that the Industrial Board was required to specify the " 'nature' of the pre-existing back condition." 164 Second, Noblesville Casting attacked the sufficiency of evidence to support several of the Industrial Board's findings of fact. The court re- viewed these findings and the supporting evidence and concluded that none of the findings were based on evidence that was "devoid of probative value or that lacked a requisite quantum of legitimacy." 165 Other eviden- tial issues dealing with hearsay and hypothetical questions were likewise resolved in favor of the claimant. 166 F. Arising Out of and In the Course of Employment Claimants for workers' compensation must prove not only an employer-employee relationship but also that their injuries arose out of and in the course of their employment. 167 Traditionally, these tests were considered separate and distinct. 168 Generally stated, the rule seems to be that an accident arises out of the employment when there is a causal connection between it and the performance of some service of the employment. A causal connection is established when the accident is shown to have arisen out of a risk which a reasonable person might com- prehend as incidental to the employment, or where the evidence shows an incidental connection between conditions under which the employee worked and his resulting injury or death. The phrase, in the course of, requires, on the other hand, some investigation into the work itself and the breadth of its grasp. The principal emphasis is upon the time and place elements, so that "in the course of" the employment might be taken to mean "during" the employment. 169 Yet, as the three cases in this section will demonstrate, there is a close relationship between the two tests, and a finding of one element tends to create an inference that the other is present as well. 1. Out of the Employment.—In Suburban Ready Mix Concrete v. Zion, 110 the parties stipulated that the harm to Robert Zion occurred within the course of his employment as a cement truck driver for Suburban. 171 164438 N.E.2d at 735. ,65 Id. at 736. > 66 Id. at 737. 167 See Ind. Code § 22-3-2-2 (1982). 168 "The phrases 'out of the employment and 'in the course of the employment have separate meanings and both requirements must be fulfilled before compensation is award- ed." dinger Constr. Co. v. Mosbey, 427 N.E.2d 910, 912 (Ind. Ct. App. 1981). 169 B. Small, Workmen's Compensation Law of Indiana § 6.1 (1950). I70443 N.E.2d 1241 (Ind. Ct. App. 1983). ,7 7tf. at 1242. 444 INDIANA LAW REVIEW [Vol. 17:427 The court of appeals addressed the issue of whether the injury arose out of his employment. Zion was accidentally, but fatally injured when a ricocheting bullet struck him in the head. The shot was fired by a minor who was shooting at street lights from his parents' apartment. 172 The court stated that "the crucial issue for determination [was] whether a causal connection exist [ed] between the accident and the employment. Absent such a connection, the injury is not deemed to have arisen out of the employment." 173 The Industrial Board found for Zion, and the Indiana Court of Appeals affirmed. The court stated that the arising out of employment requirement is relaxed when a claimant's employment involves traveling. 174 The court cited a 1981 case in which a traveling employee was killed in a robbery at a motel near the construction site where he worked. 175 Even though the robbery in that case took place after working hours, the death was found to arise out of his employment because his job placed him at the point where the shooting occurred. In Zion, the court found that the claimant's employment required him to be at the site of the accident and held that such a finding supported the Industrial Board's conclusion that the accident arose out of Zion's employment. 176 Indiana courts have ruled that employees who incur injury, even during working hours, by crossing highways and exposing themselves to danger no greater than would be experienced by the general public, cannot recover under the statute. 177 But when the employer condones the conduct, or makes it necessary, compensation is awarded. 178 Generally, parking lot accidents are compensable, 179 as are noon time injuries on the employer's premises. 180 Injuries to employees who leave the premises for lunch on their own time may result in denied compensation, 181 but traveling employees are generally protected throughout the day while away from home on the employer's business. 182 Innocent victims of horseplay and 172 Id. ,1} Id. (citing Prater v. Indiana Briquetting Corp., 253 Ind. 83, 86, 251 N.E.2d 810, 812 (1969)). ,74 443 N.E.2d at 1242. ni Id. (citing dinger Constr. Co. v. Mosbey, 427 N.E.2d 910 (Ind. Ct. App. 1981)). ,76443 N.E.2d at 1243. '"See Pope, Compensable and Non-Compensable Injuries Under the Indiana Workmen's Compensation Act, Indiana Workmen's Compensation 1983 § 1, at 31-32 (Indiana Contin- uing Legal Education Forum 1983) (citing De Canales v. Dyer Constr. Co., 147 Ind. App. 537, 262 N.E.2d 543 (1970)). l78 Pope, supra note 177, at 32 (citing Prater v. Indiana Briquetting Corp., 253 Ind. 83, 251 N.E.2d 810 (1969)). '"Pope, supra note 177, at 27-28. ,i0 Id. at 30-31. ,%, Id. at 30. n2 Id. at 43-44. 1 984] SUR VEY— WORKERS ' COMPENSA TION 445 assault during working hours also receive compensation. 183 In general, in- juries that occur solidly within the course of employment are found to have an incidental causative nexus to the employment sufficient to sup- port the additional finding that they arose out of the employment. 2. In the Course of Employment.—The injury in Indiana Bell Telephone Co. v. Ernst, 194 clearly arose out of the claimant's employ- ment. Ernst was returning a company truck to the company garage when he was struck by another vehicle. 185 He was returning after completing a task assigned him by the company. Indiana Bell claimed that because the task was completed, and the accident occurred, after authorized work- ing hours, the injury was not incurred within the course of the claimant's employment. 186 The evidence as to authorization was in conflict, but the court ruled that "from the evidence there existed a reasonable inference that Ernst's assignment that day was to complete the two calls and return the truck to the garage." 187 The court suggested that the claimant may have worked overtime without authorization and may have taken too long to complete a job assignment, but held that when the accident occurred, he was within the course of his employment. 188 When the risk that leads to the accident is created by the employ- ment, i.e., it arises out of the employment, the accident is generally con- sidered compensable, even in the face of the employee's alleged miscon- duct. Where there is no misconduct, the basis for compensability is even clearer, as when a cashier is mugged after working hours because the rob- bers believed—erroneously—that she carried the day's cash receipts. 189 One final issue in Ernst is of interest. Although classifying the accident as a " 'non-job' incident," Bell paid Ernst $343.50 per week for fourteen weeks and $171.75 per week for thirty-nine weeks, and then terminated his employment. 190 The employer asked that this amount be credited against the workers' compensation award as a substitute system of insurance. 191 Because the company could not establish "whether Bell's sickness benefit plan complied with IC 22-3-5-4, whether it was intended to do so, or n3 Id. at 34-35 (citing Woodlawn Cemetery Ass'n v. Graham, 149 Ind. App. 431, 273 N.E.2d 546 (1971)). ,84444 N.E.2d 1258 (Ind. Ct. App. 1983). ii5 Id. at 1259. ne Id. at 1260. Indiana Bell also claimed, on the same basis, that the injury did not arise out of Ernst's employment. Id. The court found that the injury did arise out of the claimant's employment "since such collisions are a reasonably foreseeable consequence of driving a company truck over the public highways." Id. ni Id. " % Id. l,9See Strother v. Morrison Cafeteria, 383 So. 2d 623 (Fla. 1980). "°444 N.E.2d at 1259. i9i Id. at 1260-61. 446 INDIANA LAW REVIEW [Vol. 17:427 whether it was ever submitted to or approved by the industrial board," 192 no credit was permitted. While the Indiana Workmen's Compensation Act provides for self-insurance 193 and substitute insurance, 194 these plans must not only provide equivalent compensation, they must be approved as well. 195 3. Secondary to a Job Related Injury—Failure to Notify Employer of Personal Doctor.—In Richmond State Hospital v. Waldren, 196 the ankle injury to the claimant arose both out of and in the course of her employment. 197 Later, when she was diagnosed as having phlebitis, Rich- mond Hospital contended that the phlebitis was not secondary to the ankle injury. 198 If it was, then the injury from phlebitis would also be found to have arisen both in the course of and out of her employment. The medical evidence was conflicting, but the Industrial Board affirmed the hearing judge's finding that the phlebitis was secondary to the ankle injury. 199 The Indiana Court of Appeals affirmed this finding. 200 The claimant in this case sought medical assistance following the original accident from a doctor recommended by her attorney rather than the one recommended by her employer, Richmond Hospital. 201 Waldren failed to notify the hospital of the change. The phlebitis occurred several months later, after she had returned to work. She revisited the doctor her attorney had recommended, again without notifying her employer, and the doctor hospitalized her. 202 Two weeks after Waldren was hospitalized, the attorney sent notice of that fact to Richmond Hospital. 203 The Industrial Board found that the employer had failed to tender medical care for the phlebitis, and due to that failure, claimant had good cause to seek medical treatment from another doctor. The Industrial Board awarded the claimant compensation for her medical expenses. 204 The court of appeals severed and remanded the claim for medical expenses. 205 It stated that "the statute allows the employee to select medical treatment under three circumstances: (1) in an emergency; (2) if the 192 Id. at 1261. ,9i See Ind. Code §§ 22-3-5-1, -3 (1982); see also id. § 22-3-7-34(b) (Indiana Occupa- tional Diseases Act). ,9ASee Ind. Code § 22-3-5-4 (1982); see also id. § 22-3-7-34(e) (Indiana Occupational Diseases Act). l95 "No such substitute system shall be approved unless it confers benefits upon injured employees ... at least equivalent to the benefits provided by this act . . . ." 444 N.E.2d at 1261 (quoting Ind. Code § 22-3-5-4 (1982)). ,96446 N.E.2d 1333 (Ind. Ct. App. 1983). ]91 Id. at 1334. ]9 >Id. at 1335. 199 Id. at 1334-35. 200 Id. at 1336. 201 Id. at 1334. 202 Id. 201 Id. 20