Concurring Opinion
White, J.Since it appeals quite probable that the right result has been reached, it is time to bring this protracted litigation to an end by affirming the award. I therefore concur in the result reached in the prevailing opinion but not in all that it says and implies.
The autopsy section (Ind. Ann. Stat. § 22-3-3-6 [Burns Code Ed., 1974]) of Indiana’s Workmen’s Compensation Act expressly confers upon employers a much broader right to an autopsy than is found in the statutes of some other states.1 It provides that “[t]he employer upon proper application . . . shall have the right in any case of death to require an autopsy. . . .” (My italics.) It imposes no express condition upon that *21right. The Appellate Court has, however, quite wisely held that there must be a necessity for the autopsy and that the request for it must be timely. Vonnegut Hardware Co. v. Rose (1918), 68 Ind. App. 385, 120 N.E. 608; McDermid v. Pearson Co., Inc. (1939), 107 Ind. App. 96, 21 N.E.2d 80.
What constitutes necessity for an autopsy has never been defined nor has the purpose of the condition been stated. However, it is clear that the employer’s right to an autopsy could easily be abused if the surviving dependents were to be held to have forfeited their right to compensation by having refused permission in a case in which the cause of death was obvious. Thus the employer seeking an order for an autopsy should be required, at the minimum, to show by credible evidence that there is a reasonable possibility that such a postmortem examination will yield evidence which may enable the Board to avoid an erroneous finding as to whether the death is or is not compensible. Requiring such a showing will prevent orders for autopsies being issued upon requests made primarily for the purpose of avoiding payment of compensation in event permission for the autopsy is refused. To require the showing of some higher degree of necessity would, of course, serve to relieve many more survivors of the emotional discomfort of an autopsy, but only at the expense of the employer’s statutory, or contractual2, right thereto. As was said in Robinson v. Nashville Machine Company, Inc. (1973), Tenn., 503 N.W.2d 90, 92, “the benefits and burdens of the [workmen’s compensation] statute arise out of contract and one before the Court [or, as in Indiana, before the Board] claiming the benefits of the act must necessarily assume its burdens, including in a proper case the right of an employer to have an autopsy. . . .” As previously noted, that right in *22Indiana is not limited by statute, as in Tennessee, to cases where the cause of death is obscure or disputed.
At bar, the employer’s initial request was timely, having been made at the earliest opportunity (which was also before interment). See McDermid v. Pearson Co., Inc. (1939), 107 Ind. App. 96, 99, 101, 21 N.E.2d 80; Delaware Machinery & Tool Co. v. Yates (1973), 158 Ind. App. 167, 301 N.E.2d 857, 39 Ind. Dec. 130. When that request was denied the employer dropped the matter. By so doing it waived its rights, whatever they may have been. Ibid. The employer should have immediately applied to a court of general civil jurisdiction in the county of preferred venue3 for a restraining order to stay interment pending the Industrial Board’s ruling on an application for an autopsy order which at the same time, the employer should have made to the Board.
. Contrast, e.g., the Tennessee statute paraphrased in the prevailing opinion following its citation of Robinson v. Nashville Machine Co., Inc. (1973), Tenn., 503 S.W.2d 90. It provides that “where the cause of death is obscure or is disputed, any interested party may require an autopsy.”
. “The rights and obligations arising under the [Indiana] Workmen’s Compensation Act . . . [of 1929] are contractual in character. Warren v. Indiana Telephone Co., supra [(1940), 217 Ind. 93, 26 N.E.2d 399]. One seeking recovery under the act must bring himself within its terms.” Mid-Continent Petroleum Corp. v. Vicars (1943), 221 Ind. 887, 393, 47 N.E.2d 972.
. See Trial Rule 75 (A).