Indiana Law Review New Developments in Workmen's Compensation Law: Accident Defined and New Thoughts on Crediting Joseph M. Forte* I. Introduction Three areas of workmen's compensation law were significantly affected by Indiana decisions during the current survey period.' Two of these major developments occurred in Evans v. Yankeetown Dock Corp.,^ a wrongful death action brought against an employer by the decedent-employee's per- sonal representative. In Evans, the Indiana Court of Appeals and subse- quently the Indiana Supreme Court, in vacating the appellate court's opinion, greatly impacted traditional views of both jurisdictional exclusivity and compensability^ by redefining a workmen's compensation term of art, "injury by accident." The third major development in Indiana workmen's compensation law related to the crediting of non-workmen's compensa- tion payments made to the employee by the employer against the employee's compensation award.'* This Article focuses on the historical backdrop against which each development occurred, the substantive changes resulting from each develop- ment and, lastly, what each development means for the Indiana practitioner. II. Accident — Revisited and Redefined A. The History The Indiana Court of Appeals' revisiting and subsequent redefining of accident in Evans changed the classical definition of accident which Member, Edward N. Kalamaros & Associates, P.C, South Bend, Indiana. B.S., Purdue University, 1976; J.D., Indiana University School of Law—IndianapoUs, 1979. The author wishes to express his appreciation to Victoria Kincke for her assistance in the prepara- tion of this Article 'The survey period runs from June 1, 1985, to May 31, 1986. During this twelve- month period, seven decisions were rendered in the area of workmen's compensation law. A bill, Senate Bill 426, was introduced in The 1987 Indiana Legislature which, if passed would significantly influence the definition of "accident" for workmen's compensation pur- poses. Therefore, practitioners faced with this issue should investigate recent legislature developments, if any. M81 N.E.2d 121 (Ind. Ct. App. 1985), rev'd, 491 N.E.2d 969 (Ind. 1986). ^Liability of the employer under the Compensation Act to any employee or employee's dependent for personal injury or death by accident arising out of or in the course of employ- ment is established under Indiana Code § 22-3-2-6 (1982). The Act requires as prerequisites compensation: (1) an injury; (2) that the injury be by accident; (3) that the injury by acci- dent arise out of the employment; and (4) that the injury occur while in the course of the employment. Ind. Code § 22-3-2-5 (1982). 'Indiana State Highway Dep't v. Robertson, 482 N.E.2d 495 (Ind. Ct. App. 1985); Jones & Laughhn Steel Corp. v. Kilburne, 477 N.E.2d 345 (Ind. Ct. App. 1985). 437 438 INDIANA LA W REVIEW [Vol. 20:437 had been in existence for nearly seventy years/ Historically, the outcome of numerous actions brought under Indiana's Workmen's Compensation Act turned upon the applicability of the definition of accident, which required a sudden, untoward event/ Such results were consistent with judicial decisions of other jurisdictions having statutory language similar to that of Indiana's Workmen's Compensation Act/ Yet, a definition of accident that focused on an ''event" often created confusion as to which event was the event at issue. Was an unexpected injury or an unexpected source of injury required for the Workmen's Com- pensation Act to apply? In response, the Indiana Court of Appeals appeared to sidestep this dilemma in Ellis v. Hubbell Metals, Inc.^ by ruling that the happening necessary to fulfill the accident requirement was an unexpected result as opposed to an unexpected event. However, Calhoun v. Hillenbrand Industries'^ and several subsequent cases '° did essen- tially dispose of the unexpected result theory, leaving intact the traditional unexpected event definitional requirement of accident as Indiana law." B. The Winds of Change While the Indiana Supreme Court reinstated the unexpected event re- quirement of accident in Calhoun, ^^ Judge DeBruler's dissent critically 'See Haskell & Baker Car Co. v. Brown, 67 Ind. App. 178, 187, 112 N.E. 555, 557 (1917). 'See Calhoun v. Hillenbrand Indus., 269 Ind. 507, 381 N.E.2d 1242 (1978); Young V. Smalley's Chicken Villa, 458 N.E.2d 686 (Ind. Ct. App. 1984); Houchins v. J. Pier- pont's, 469 N.E.2d 786 (Ind. Ct. App. 1984); Estey Piano Corp. v. Steffen, 164 Ind. App. 239, 328 N.E.2d 240 (1975); City of Anderson v. Borton, 132 Ind. App. 684, 178 N.E.2d 904 (1962); American Maize Produce Co. v. Nichiporchick, 108 Ind. App. 502, 24 N.E.2d 801 (1940); Indian Creek Coal & Mining Co. v. Calvert, 68 Ind. App. 474, 119 N.E. 519 (1918). ^See generally 81 Am. Jur. 2D Workmen's Compensation § 227 (1976). M74 Ind. App. 86, 366 N.E.2d 207 (1977). '269 Ind. 507, 381 N.E.2d 1242 (1978). '"Young V. Smalley's Chicken Villa, 458 N.E.2d 686 (Ind. Ct. App. 1984); Houchins V. J. Pierpont's, 469 N.E.2d 785 (Ind. Ct. App. 1984). "The two conflicting views as to satisfying the "accident" requirement through either the untoward event or unexpected result theory came before the court of appeals in Calhoun V. Hillenbrand Industries, 374 N.E.2d 54 (Ind. Ct. App. 1978). The Industrial Board had denied compensation. The court of appeals concluded an injury was "by accident" if the result was unexpected, even though no unexpected event had occurred. In Calhoun, the unexpected result was a backache suffered by the claimant. Accordingly, the court of ap- peals reversed the Industrial Board's denial of compensation. However, the supreme court, on transfer, disagreed and vacated the opinion of the court of appeals, stating in its now famous language, "It is well settled under our law that in order to show an accident there must be some untoward or unexpected event .... It is not sufficient to merely show that a claimant worked for the employer during the period of his life in which his disability arose." Calhoun, 269 Ind. at 510-11, 381 N.E.2d at 1244 (citations omitted). '^269 Ind. 507, 381 N.E.2d 1242 (1978). 1987] WORKMEN'S COMPENSATION 439 concluded that the Industrial Board had inappropriately isolated a causa- tion question, that is—whether the personal injury had been caused by an accidental means or method, within its analysis of the accident issue. '^ Judge DeBruler was not alone in his criticism of this definition of accident."* Judge Ratliff, in a concurring opinion in Kerchner v. Kingsley Fur- niture Co.,^^ previewed the court of appeals decision in Evans by recall- ing his concurring opinion in Lovely v. Cooper Industrial Products, ^^ in which he expressed his displeasure with the "unexpected cause" theory of accident. Judge Ratliff adamantly contended that the unexpected cause theory, which is predicated on a sudden, untoward event traceable to a precise date, place, and time, departs from the underlying philosophy and legislative intent of Indiana's Workmen's Compensation Act.'^ Under Judge RatUff's analysis, the proper focus of an "accident" analysis is on an unexpected or untoward result "arising out of and in the course of employment" rather than on an unexpected or untoward event. "^ While ultimately yielding to the precedential case law in effect. Judge Ratliff concluded by expressing a hope that the courts' current use of the unex- pected cause definitional requirement of accident would be overturned and replaced by an unexpected result theory of accident.'^ Two months after Kerchner, Judge Ratliff's hopes were realized by the Indiana Court of Appeals decision in Evans v. Yankeetown Dock Corp.^^ Yet this fulfill- ment of Judge Ratliff's hopes was to be short-lived—in less than a year, the Indiana Supreme Court would vacate the appellate court's decision^' and in doing so, would clarify or, depending on your point of view, totally change the judicial interpretation of the term "injury by accident" as used in Indiana's Workmen's Compensation Act. C. Evans v. Yankeetown Dock Corp.: The Decision 1. The Court of Appeals a) The facts.—The Evans case was a wrongful death action brought against the decedent's employer by the decedent's personal representative- spouse.^^ Mrs. Evans contended that the employer was negligent in that ''Id. at 512, 381 N.E.2d at 1245 (DeBruler, J., dissenting). '*See Forte, // Was No Accident That . . . , 19 Ind. L. Rev. 207, 210 (1986). "478 N.E.2d 74 (Ind. Ct. App. 1985). 'M29 N.E.2d 274, 279-81 (Ind. Ct. App. 1981) (Ratliff, J., concurring), transfer denied. 'Ud. at 279. ''Kerchner, 478 N.E.2d at 78 (Ratliff, J., concurring). ''Id. "481 N.E.2d 121. ''Evans, 491 N.E.2d 969. ^M81 N.E.2d at 123. 440 INDIANA LA W REVIEW [Vol. 20:437 it had knowingly employed a mentally ill individual who posed a physical threat to fellow employees and who unquestionably was a proximate cause of her husband's death. ^^ Shortly before the start of the workday, a co- employee, Harlan Miller, shot the decedent five times while suffering a hallucinatory delusion that his wife and the decedent were conspiring to kill him by poisoning; these delusions resulted from an alcohol-induced paranoia.^'* Evidence further indicated that the employer's superintendent knew that Harlan Miller had threatened Oscar Evans with bodily harm and shortly after the shooting stated, *'[M]aybe I should have done something to prevent it [the shooting]."" In response, the defendant-employer, Yankeetown, generally denied Mrs. Evans' allegations and moved for summary judgment by essentially challenging the trial court's jurisdiction over the complaint." From Yankeetown's point of view, this was a workmen's compensation com- plaint, which was governed by Indiana's Workmen's Compensation Act and rightfully within the jurisdiction of the Industrial Board. ^^ The trial court granted summary judgment in favor of the defendant by holding that an action for workmen's compensation was the sole and exclusive remedy available for the death of Oscar Evans. ^^ To support its decision, the trial court found that (1) Oscar Evans and Harlan Miller were indeed co-employees of the defendant, (2) on the date in question, Evans was shot and killed by Miller, and (3) Evans' death was the result of an * 'ac- cident which arose out of and in the course of" his employment with Yankeetown Dock Corporation.^' b) Accident defined.—Simply put, the issue before the court of appeals in Evans was whether Indiana's Workmen's Compensation Act granted the Industrial Board exclusive jurisdiction over negligence claims brought against an employer for the wrongful death of an employee. ^° From the vantage point of this issue, the court of appeals quickly grasped the opportunity to attack and clarify the definition of accident, a term of art which had given rise to judicial confusion on more than one occa- sion.^' The Evans court launched its attack by noting the absence of the qualifying language, "arising out of and in the course of" in the workmen's compensation jurisdictional statute, Indiana Code section 22-3-2-6.^^ This absence, when compared with the quaHfying language's '*id. ''Id. ''Id. ''Id. ''Id. "Id. at 123-24. '"Id. at 123. "M at 125. "Id. 1987] WORKMEN'S COMPENSATION 441 presence in the actual compensation statute, Indiana Code section 22-3-2-2, was of great significance to the court of appeals in that it created a distinc- tion between requirements necessary for jurisdiction and requirements necessary for actual compensation; it was this distinction that, in the words of the Evans court, meant "this court for more than a half century has on occasion misconstrued workers' compensation law by contorting pristinely simple legislative language into a virtually unworkable defini- tion of 'accident'."" The court then focused on the actual language of the jurisdictional statute, which states that the Industrial Board is to have exclusive jurisdic- tion in a claim based on "personal injury or death by accident. "^"^ After noting that "personal injury or death" is "self-explanatory," the Evans court emphasized that the precise language used by Indiana legislators is "by accident," rather than "by an accident," as Indiana courts have frequently construed the jurisdictional statute." Thus, the court of appeals used the omission of the article "an" as the basis for ruling that the jurisdictional requirements of Indiana Code section 22-3-2-6 are met by any accidental injury, where accidental injury is defined as one that was not expected to occur or one that did not occur by design of the employer or injured employee. ^^ Philosophically, the Evans court found that a definition of accident that focused on a sudden, untoward event presumed that Indiana's Workmen's Compensation Act was "meant to remedy an 'accident' and thereby be regulated by an 'event'."" Such a presumption was clearly erroneous under the court of appeals' interpretation of Indiana' a Work- men's Compensation Act. According to the Evans court, "[W]orkmen's compensation laws were enacted to cover liability without fault for in- juries or death in the workplace, as social legislation whereby employers (and ultimately consumers) would bear the burden of risk of insecurity and poverty of injured employees."" Therefore, under the Evans ap- proach, a court, in determining whether the threshold requirement of "ac- cident" had been met, should focus on the resultant injury to the employee rather than either the injury's unexpected source or the unexpected event that had caused it." c) A causal connection required.—However, the court of appeals circumscribed the parameters of the change wrought in Evans by indicating that considerations relating to the time, manner, and causation of the employee's injury would be shifted from judicial determinations of jurisdic- '*Id. at 126. ''Id. ''Id. ''Id. '^Id. (citing B. Small, Workmen's Compensation Law of Indl\na § 1.1 (1950)). '"Id. at 126-27. 442 INDIANA LAW REVIEW [Vol. 20:437 tion to determinations of compensability; that is, these factors would be critical in determining whether the employee's injury '*arose out of and in the course of employment" and was therefore compensable/" To illustrate the proper approach towards issues of jurisdiction and compensability, the Evans court utilized an example of an employee suf- fering a heart attack while engaged in routine labor/' Because the employee's injury was clearly unintended by both employee and employer, the injury was accidental and clearly within the jurisdictional ambit of the Industrial Board/^ Yet the injury's cause is determinative of the issue of compensability. If the employee's heart attack is shown to have resulted from a pre-existing heart condition, the injury did not arise from his employment and is not compensable/^ However, if the heart attack resulted from unusual exertion demanded by the employee's work, his injury is deemed to have arisen out of and in the course of employment /"* The Evans court went on to note that a critical reading of cases such as the classic heart attack case of United States Steel Corp. v. Dykes*^ reveals that the claims in these cases were not decided upon an inter- pretation of "accident," but rather were decided upon the fact that the injuries either did not arise out of employment or did not occur in the course of employment/^ The court then concluded that its approach to redefining accident would not change the law as it has been applied — that is, the causal connection required for compensability would remain unscathed/^ However, from this point forward, the causal requirement would be a critical element of an analysis of whether the accident "arose out of and was suffered in the course of" the employment. d) Jurisdictional questions.—In attempting to clarify the interaction between the compensation statute, Indiana Code section 22-3-2-2, and the jurisdictional statute, Indiana Code section 22-3-2-6, the Evans court held that the qualifying language "arising out of or in the course of" was not to be considered in analysis of the jurisdictional question.''^ However, later in the main opinion, the court noted: ""M at 129-30. Acts of willful or wanton misconduct by the employer against the. employee were "most likely" not included within the definition of accident. Id. Additional- ly, the court did not change or criticize the prohibition of compensation for the employee's injury that is knowingly self-inflicted, a result of intoxication, a commission of an offense, a failure to use safety appliances, or a failure to obey a reasonable written or printed rule of the employer conspicuously posted under Indiana Code § 22-3-2-8. Id. at 128 n.7. ''Id. at 129. 'Ud. 'Ud. *'Id. ^'238 Ind. 599, 154 N.E.2d 111 (1958). ''Evans, 481 N.E.2d at 129. ''Id. ''Id. at 125. 1987] WORKMEN'S COMPENSATION 443 [T]hus, the language "arising out of and in the course of employ- ment" qualifies, not just ''accident," but the entire jurisdictional threshold, "personal injury or death by accident." To do other- wise, of course, would cause a conflict in identical phraseology merely because it was located in separate statutes: "accident" as "event" in Indiana Code 22-3-2-2 and "accident" as "condition" in Indiana Code 22-3-2-6. We can hardly credit our legislature with such an absurd intention. Thus, our definition of "by acci- dent" from the jurisdictional statute necessarily alters the mean- ing of the claim statute. ""^ While this apparent inconsistency was not addressed by the Evans ma- jority. Judge Conover, in his concurring opinion, urged that the jurisdic- tional rule must retain the qualifying language "arise out of and in the course of employment."^" Judge Conover stated that if this v/ere not the case, the Industrial Board would be given exclusive jurisdiction over cases that involved off-the-job injury or death. ^' To illustrate the absurdity of this result. Judge Conover posed the hypothetical of an emplovee injured when struck by his employer's truck in the middle of town; under the majority's approach, the Industrial Board would be given exclusive jurisdic- tion in this hypothetical.^^ Because such jurisdiction was never intended by the legislature. Judge Conover opined that "the qualifier 'arising out of and in the course of employment' is an integral part of the rule."" In Segally v. Ancerys,^"^ the Third District Court of Appeals apparently agreed with Judge Conover because it failed to follow the Evans jurisdic- tional decision as to the judicial removal of the qualifying phraseology "arise out of and in the course of employment." While Segally did not formally address Evans in its decision, its analysis clearly relied on a pre- Evans jurisdictional test." Similarly, in Ski World, Inc. v. Fife,^^ the First District Court of Appeals explicitly refused to apply the Evans test and chose for its jurisdictional analysis the x>^Q-Evans test set forth in Skinner V. Martin J^ Thus, with Segally and Ski World standing in direct conflict with Evans, a situation ripe for supreme court clarification arose. 2. The Indiana Supreme Court a) Setting the stage.—Resolution of this conflict between the districts 'Ud. at 129. '°/^Q-Evans 'M91 N.E.2d 969 (Ind. 1986). ''Id. at 971. ''Id. ''Id. "Id. ''Id. at 972. *nND. Code § 22-3-6-l(c) (1982). "Evans, 491 N.E.2d at 973. "Id. 'Ud. 1987] WORKMEN'S COMPENSATION 445 jurisdictional test originally formulated in Skinner v. Martin .^^ Under this test, Indiana Code section 22-3-2-6 "excludes all rights and remedies of an employee against his employer for personal injury or death if the follow- ing three statutory jurisdictional prerequisites are met: A. personal injury or death by accident; B. personal injury or death arising out of employment; C. personal injury or death arising in the course of employ- ment."^' Any action for employee injury or death that does not meet all three prerequisites is not within the jurisdiction of the Industrial Board and therefore may be brought in court/" c) Looking at the definition of accident.—Tmmng to the definition of accident, the Evans court consistently reinforced its finding that Indiana Code section 22-3-2-6 is unambiguous. To the court, appHcation of the statutory language '*by accident" was to be done on a literal basis rather than by a re-interpretation of the language which necessitated the inser- tion of the article "an" before the word "accident. "'' In effect, the supreme court, in focusing on the statutory language, redefined accident without the finding of ambiguity made by the court of appeals. As a result, the statutory terminology "injury or death by accident," as used under Indiana's Workmen's Compensation Act, was held to be any unex- pected injury or death, and previous case holdings were expressly over- ruled to the extent that they were inconsistent with this definition. ^^ Yet the supreme court carefully circumscribed the boundaries of its decision by distinguishing the jurisdictional issue of Evans from the causa- tion issue of Calhoun v. Hillenbrand Industries. ^^ To clarify this distinc- tion, the court simply noted that analysis of causation issues is most prop- erly addressed under the portion of the statute dealing with the term, "arising out of" the employment.^'' Accordingly, the Calhoun decision remains correct as it relates to a required showing of the causal connec- tion between injury and employment—that is, a claimant must make more than a mere showing that he was working for the employer during the period in which the disability arose in order to establish causation.'^ Implicitly, by such reference to Calhoun, the supreme court steadfastly preserved the causation requirement for compensabihty. ''Id. ''Id, ''Id. ''Id. at 974. 'Ud. at 975. ''269 Ind. 507, 381 N.E.2d 1242 (1978). '*Evans,A9\ N.E.2d at 975. ''Id. 446 INDIANA LAW REVIEW [Vol. 20:437 Finally, the court applied its interpretation of Indiana's Workmen's Compensation Act to the case at bar. Because the trial court had cor- rectly found that Oscar Evans was an employee and that he suffered death by accident that arose out of and in the course of his employment,'^ the exclusive remedy provisions of Indiana's Workmen's Compensation Act barred an action at law against Evans' employer. '' Therefore the lower court's grant of summary judgment in favor of the employer was appropriate.'^ D. Evans' Effect on the Practitioner Although the court of appeals did attempt to establish a new jurisdic- tional test, the Evans case ultimately served to affirm a jurisdictional test already in place and in use. However, in this reaffirmation, the supreme court appeared to alter radically the definition of accident. But on closer analysis, this alteration has less impact on practice under Indiana's Workmen's Compensation Act than would appear upon an initial reading of the case. While it is true that a small number of cases will be affected by Evans' definitional change, a practitioner, in all likelihood, would have resolved most of these clear accident cases, or at least the issue of accident, prior to a hearing before the Industrial Board. In the remaining cases, the chang- ing of the definition of accident will place more importance on medical- legal analysis. Evans requires that the practitioner pay closer attention to the claimant's prior medical history as it relates to the issue of whether the accident was unexpected or the result of a pre-existing condition and therefore more probably expected. A gray area may emerge from those cases defended on the basis of '*no accident" with regard to the expecta- tion of injury. Consequently, further clarification will undoubtedly be forthcoming as this approach is taken and collides with the granting of compensation for the aggravation of pre-existing injuries. Nevertheless, the Evans' decision greatly clarifies the accident issue; such clarification will unquestionably result in less litigation on the issue of accident. In the future, the practitioner's emphasis will shift to the causal connection under the "arising out of the employment" portion of the statute. In the area of causation, negligible event cases such as City of Anderson v. Borton,^^ Young v. Smalley's Chicken Villa, ^^ and Houchins v. /. Pierpont's,^^ will remain good law, either under the ''Id. ''Id. at 976. 'Ud. "132 Ind. App. 684, 178 N.E.2d 904 (1962). '"458 N.E.2d 686 (Ind. Ct. App. 1984). "469 N.E.2d 786 (Ind. Ct. App. 1984). 1987] WORKMEN'S COMPENSATION AAl approach that the accident was expected or, alternatively, that the situa- tion is not compensable because the injury did not "arise out of" the employment and accordingly fails to satisfy the proximate causation re- quirement of the Act. Thus the practitioner will, for the most part, make the same analysis under a different section of the Act in the future. III. Credits A. The Historical Trilogy While Indiana Code section 22-3-3- 10(a) clearly limits disability payments for injuries occurring after July 1, 1979, to fifty-two weeks of temporary total disability benefits,^^ uncertainty arose in terms of credits for payments under Indiana Code section 22-3-3-23.*^ Historically, the provision appears to have been an attempt to bar an employee from benefits to which he was entitled under Indiana's Workmen's Compensa- tion Act if the injured employee received benefits under a group disability policy.®'^ However, in United Toolcraft v. Sousley,^^ the Indiana Court of Appeals held that acceptance of group benefits, which were paid to the employee under the mistaken belief that his condition had resulted from illness and not injury "arising out of and in the course" of his employ- ment, did not bar recovery of workmen's compensation benefits. Rather the Sousley court, by noting the employee's concession that the employer was properly allowed a credit against the workmen's compensation award for payments made under the disability poHcy, implicitly agreed with the crediting.*^ Following Sousley, the law of payment crediting was somewhat con- fused due to conflicting approaches and narrowly drawn exceptions. In Inland Steel Co. v. Almodovar,^'' the parties' factual stipulation to the single hearing member clearly indicated that both a credit for overpay- ment of temporary total disability benefits and a credit for receipt of non- occupational group insurance benefits would be allowed to the employer. «^lND. Code § 22-3-3-10 (1982). «^IND. Code § 22-3-3-23(a) (1982) reads: Any payments made by the employer to the injured employee during the period of his disability, or to his dependents, which by the terms of Chapters 2 through 6 were not due and payable when made, may, subject to the approval of the industrial board, be deducted from the amount to be paid as compensation. However, the deduction shall be made from the distal end of the period during which compensation must be paid, except in cases of temporary disability. '*See United Toolcraft v. Sousley, 128 Ind. App. 181, 147 N.E.2d 558 (1958). ''Id. ''Id. at 188, 147 N.E.2d at 562. '^72 Ind. App. 556, 361 N.E.2d 181 (1977). 448 INDIANA LA W REVIEW [Vol. 20:437 On review, the court seemed to agree that the claimant should not be allowed a double recovery by retaining both the non-occupational disability benefits and the workmen's compensation benefits/* Yet the Almodovar court subsequently ruled that the Industrial Board did not have jurisdic- tion to make such a crediting determination because insufficient facts to estabhsh jurisdiction were presented in the record/' Of apparent concern to the Almodovar court was the need for some type of plaintiff indemnification in the event that a non-occupational car- rier was involved and sought recovery from the plaintiff for funds paid erroneously under the belief that the incident was non-work-related/" Con- sequently, the court of appeals established an implied rule that if the employer, and not some insurance company, paid the "non-occupational" benefit to the plaintiff pursuant to a contract that gave the employer a right to deduct such payments from its liability to the plaintiff for the compensation award of the Industrial Board, then the Industrial Board would have jurisdiction to make an appropriate award for such credits/' However, if the benefits were paid by an insurance company, which was not the employer's compensation carrier, the Industrial Board had no jurisdiction to attempt to adjudicate the plaintiff's Hability or non-liability to such insurer/^ Although the Indiana Supreme Court denied transfer in Almodovar, Justice Pivarnik dissented from this denial and Justice Prentiss concurred with the dissent." The dissent noted that the majority, in failing to grant transfer, supported the lower court's failure to state the grounds for its denial of credits for the money expended for hospital and medical costs/'* In addition, the dissent found the stipulations entered into by the parties at the beginning of the hearing to be anything but ambiguous/^ In this regard. Justice Pivarnik noted that both parties stipulated to the amounts paid and further stipulated that Inland was to receive full credit for the amounts paid in the event that there was a workmen's compensation award in favor of the petitioner/^ The decision in Freel v. Foster Forbes Glass Co,^^ completes this historical trilogy. In Freel, the surviving dependents of the disabled employee appealed an Industrial Board award of temporary total disability ''Id. at 566-67, 361 N.E.2d at 188. ''Id. at 567, 361 N.E.2d at 188. ''Id. ''Id. 'Ud. "Inland Steel Co. v. Almodovar, 266 Ind. 638, 366 N.E.2d 169 (1977) (Pivarnik, J. dissenting). ''Id. at 639, 366 N.E.2d at 170. ''Id. ''Id. "449 N.E.2d 1148 (Ind. Ct. App. 1983). 1987] WORKMEN'S COMPENSATION 449 benefits made subject to a credit equaling amounts paid by the employer under a wage continuation plan.'^ The wage continuation plan in Freel was not a part of a union contract and was silent as to the interplay with benefits available to injured employees under workmen's compensa- tion. '' The employer was self-insured for Workmen's Compensation Act benefits as well as for sickness and accident benefits. '°° The Freel court, in its analysis, noted the absence of authority for the proposition that a contract that provides benefits to an employee on some basis other than workmen's compensation should specifically provide for credits to the workmen's compensation carrier before the same may be applied.'"' In addition, the court of appeals focused on the purposes of Indiana's Workmen's Compensation Act, which it saw as the avoidance of litiga- tion and the placement of the burden of caring for the injured employee upon the industry employing the employee and the consumers of that in- dustry's products.'"^ The court reasoned that if a credit was not available, the employee would recover twice for the same injury; in addition, the injured employee would receive more money for the period of disability than he would have been able to earn had there been no injury.'" To the Freel court, such a potential situation was totally inconsistent with the purposes of Indiana's Workmen's Compensation Act.'"'' Moreover, the court of appeals opined that any employer who voluntarily paid an employee in his time of need should not be penalized by the denial of a full credit against any workmen's compensation award for such payments — any ruling to the contrary would inevitably cause employers to be less generous.'"^ B. Changes in Crediting It was against this historical backdrop that two Indiana cases dealing with credits occurred. In Jones & Laughlin Steel Corp. v. Kilburne,^^^ the court of appeals addressed the issue of whether amounts paid pur- suant to a union-established permanent disability pension plan should be set-off against workmen's compensation awards. While the pension plan in Kilburne was funded entirely by the employer, the court found that it was a separately bargained employment benefit which was designed to supplement workmen's compensation and that pension benefits paid in 'Ud. at 1149. "/cf. at 1149-50. '°°/J. at 1150. '"'M at 1151. '''Id. '''Id. '''Id. "'Id. "'All N.E.2d 345 (Ind. Ct. App. 1985). 450 INDIANA LAW REVIEW [Vol. 20:437 fulfillment of this plan were separate and apart from workmen's com- pensation awards.'"^ As a result, the Kilburne court approved of the Industrial Board's refusal to deduct the pension plan benefits from its award. '°^ Of particular import to the Kilburne decision was the pension plan's contractual language addressing deductions for the payment of workmen's compensation.'"^ Also contained within this portion of the pension plan was an exemption for payments received by participants for a permanent incapacity retirement occurring prior to age 65; the exemption prohibited the crediting of payments against a compensation award.' '° Finally, the Kilburne court dispelled the notion of ''double recovery" involved in this particular factual situation by indicating that the claimant would not receive payments greater than his regular salary if he received both workmen's compensation and pension benefits.''' In the second crediting case in the survey period, Indiana State Highway Department v. Robertson, ^^^ the claimant demonstrated a novel approach to Indiana Code section 22-3-3-23. In Robertson, the employee sought to avoid the Workmen's Compensation Act's exclusive remedy pro- vision in an action against her employer, the State Highway Department; the action was premised on allegations of negligent design, construction, and maintenance of an intersection where the employee was injured."^ Although the trial court denied the defendant-employer's motion for sum- mary judgment based upon workmen's compensation's exclusive remedy provisions, the Indiana Court of Appeals found the plaintiff's injury to be a compensable work-related accident and, therefore, any action at law was barred by the exclusive remedy provisions.'"* In attempting to persuade the appellate court, the plaintiff argued that the State Highway Department should be subject to suit based upon a dual capacity theory."^ Alternatively, the plaintiff contended that the exclusivity provision of Indiana's Workmen's Compensation Act was in- applicable because the employee received wage compensation as a merit employee for disabilities from injuries occurring while on the job under a provision of the Indiana Administrative Code, rather than under the provisions of the Workmen's Compensation Act."^ °Ud. at 349. "Id. at 348. "'Id. ''Id. ''Id. 'H82 N.E.2d 495 (Ind. Ct. App. 1985). "Id. at 496. ''Id. at 498. "Id. at 497. ''Id. 1987] WORKMEN'S COMPENSATION 451 In overturning the lower court's denial of summary judgment, the Robertson court noted that under 31 Indiana Administrative Code 2-11-5, the state provided the employee full pay for lost time as opposed to tem- porary total disability benefits of 66V3^q of statutory wages as provided under Indiana's Workmen's Compensation Act."^ In addition, the court found that payments under the administrative code provision were '*not due and payable when made" and would therefore not operate to remove the matter from the Act or its exclusive remedy provisions because removal would render Indiana Code section 22-3-3-23(a) a nullity."* Finally, the Robertson court found support for crediting payments made against workmen's compensation awards under the terms of 31 Indiana Adminis- trative Code 2-11-5 itself, which provides for a credit offset of funds paid under it when an employee also seeks temporary total disabihty compen- sation during the single year of applicability."^ C. Meaning for the Practitioner While the area of crediting remains somewhat unclear, several general rules for the application of Indiana Code section 22-3-3-23 can be gleaned from the above cases. These rules are: (1) while it appears that a contractual agreement giving rise to such credit is most helpful to the employer seeking to enforce a credit, such agreement is really not necessary; (2) if payments for workmen's compensation are made directly from the employer or from the employer's insurer, it appears that the credit will be granted; (3) a troublesome area arises where there may be a subrogation or lien claim against the employee for repayment of funds by the insurance carrier or entity making medical or disability payments; (4) where a pension plan or other benefits are bargained for as a part of negotiations in a union contract, payments made under such plans will not be allowed as a credit against a workmen's compensation award in the absence of specific con- tractual provisions granting credits; and (5) excess payments amounting to more than the employee's nor- mal wages apparently provide strong grounds for allowing a credit, although a failure to exceed wages does not necessarily result in a denial of credits. "Vflf. at 498. 452 INDIANA LAW REVIEW [Vol. 20:437 These guidelines appear to arise from public concern over the possibility of an employee being subject to subrogation actions by non-workmen's compensation insurance carriers or other entities providing such funds and competing public poHcy against double recovery by the claimant. Crediting is also an area where further judicial interpretation is expected.