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decided: April 12, 1973.


Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, March T., 1966, No. 3623, in case of Domenic A. Tropiano v. The Travelers Insurance Company, The Travelers Indemnity Company, Harvey W. Weldon, M.D., The Presbyterian Hospital in Philadelphia, Nazareth Hospital, and Joseph J. Toland, 3rd, M.D.


George T. Guarnieri, for appellant.

Joseph J. Murphy, with him Murphy, Murphy & Murphy, for appellees.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, and Cercone, JJ. (Packel, J., absent.) Opinion by Watkins, J. in Support of Affirmance. Wright, P. J., and Jacobs, J., join in this opinion. Opinion by Cercone, J. in Support of Reversal. Hoffman and Spaulding, JJ., join in this opinion.

Author: Per Curiam

[ 227 Pa. Super. Page 488]

The six judges who heard this appeal being equally divided, the order is affirmed.


Order affirmed.

Opinion by Watkins, J. in Support of Affirmance:

The Pennsylvania Supreme Court has finally determined that the insurance carrier is included within the term "employer" as it is used in Section 303 of The Pennsylvania Workmen's Compensation Act and, therefore, shares the employer's immunity from common law liability. See, Jadosh v. Goeringer, 442 Pa. 451, 275 A.2d 58 (1971); DeJesus v. Liberty Mutual Insurance Company, 439 Pa. 180, 268 A.2d 924 (1970); Brown v. Travelers Insurance Company, 434 Pa. 507, 254 A.2d 27 (1969).

The pleadings in this case do not, in fact, allege anything that would constitute Harvey W. Weldon, M.D. an employe of the Travelers Insurance Company or Travelers Indemnity Company. The allegations of negligence against defendant, Travelers Insurance Company and Travelers Indemnity Company do not state a cause of action, as the conduct of the aforesaid was completely within the authority granted them under the Act of August 24, 1953, P. L. 1382, § 1, as amended, 77 P.S. § 531, whereby the employer or its insurer are bound to furnish medical and surgical treatment for work connected injuries to employees for a period of twelve (12) months and thereafter on petition by claimant to the Workmen's Compensation Board.

Also, the choice of the treating physician is within the discretion of the employer who has the right to direct the physician or physicians to render such services. In this case, the appellant complains that after some

[ 227 Pa. Super. Page 489]

    fifteen (15) months of medical and surgical treatment the appellees above-named directed Dr. Weldon to cease furnishing said services and also that the appellee, Travelers Indemnity Company and the Travelers Insurance Company, transferred the appellant from Joseph J. Toland, 3rd, M.D., to Harvey W. Weldon, M.D., for medical and surgical treatment.

I would, therefore, affirm the order of the court below with regard to the Travelers Insurance Company and the Travelers Indemnity Company. This does not bar the plaintiff's right to a common law action of trespass against the doctor-defendant or the hospital-defendant for any malpractice or negligence in the treatment he received.

Opinion by Cercone, J. in Support of Reversal:

The issue presented in this appeal is whether or not the employer's Workmen's Compensation insurance carrier is liable in trespass to an employee for alleged negligence in the supplying of medical services in the treatment and care of an injury previously sustained by an employee during the course of his employment.*fn1

[ 227 Pa. Super. Page 490]

It was the lower court's view that such trespass action was precluded by section 1 of The Pennsylvania Workmen's Compensation Act of May 22, 1953, P. L. 204, as amended by section 1 of the Act of January 25, 1966, P. L. (1965) 1552 which provides: "Such insurer shall assume the employer's liability hereunder and shall be entitled to all of the employer's immunities and protection hereunder. . . ." It therefore granted defendant's motion for judgment on the pleadings or in the

[ 227 Pa. Super. Page 491]

    alternative for summary judgment.*fn2 I cannot agree with the lower court's holding.

An injured employee may recover workmen's compensation for a third party's subsequent aggravation of an injury sustained during the course of employment where the aggravation follows as a natural consequence of the original injury and can be viewed as proximately caused thereby. (See: Vogel v. Jones and Laughlin Steel Corp., 221 Pa. Superior Ct. 157 (1972); Baur v. Mesta Machine Co., 393 Pa. 380 (1958), and cases cited therein). However, the employee still has his rights in trespass against that third party for its negligence (Zimmer v. Casey, 296 Pa. 529 (1929); Lazar v. Falor, 118 P.L.J. 299, 305-306 (1970); and Howard v. Berg, 86 Pa. D. & C. 358 (1953)). It is my opinion that the Legislature did not, by the above-quoted immunity clause in The Pennsylvania Workmen's Compensation Act, intend to foreclose a claim against a carrier and permit it to escape liability for its own independent acts of negligence with which an employer had no connection whatsoever and which arose subsequent to and independent of the injury sustained during the course of the employee's employment. I would hold, therefore, that the carrier cannot immunize itself from liability in trespass on grounds of negligence by relying on the employer's liability for workmen's compensation. The device of subrogation to the employer's right of immunity from suit in trespass was not intended to be so extended.

Not only is this conclusion based on the language of the immunity clause, but its manner of placement in the statute clearly reveals that no such far-reaching immunity

[ 227 Pa. Super. Page 492]

    was intended. The title of section *fn13 above cited makes no reference to or indication of the inclusion of such immunity clause. Nor is the immunity statement presented in a manner to indicate it was intended to have the broad scope sought to be given it by the carrier. On the contrary, it is placed, without any emphasis by separate paragraphing or otherwise, in the body of a long paragraph and section dealing with the mechanics of insuring the payment of compensation.

The cases of DeJesus v. Liberty Mutual Insurance Co., 439 Pa. 180 (1970); Brown v. Travelers Insurance Co., 434 Pa. 507 (1969); and Jadosh v. Goeringer, 442 Pa. 451 (1971), relied on by the carrier, are distinguishable. The carriers in those cases were charged with negligence with respect to the original injury occurring to the employee during the course of his employment on the employer's premises, and Section 303 of The Pennsylvania Workmen's Compensation Act was properly held to deny common law recovery in trespass against the carrier for such injuries occurring during the course of employment. Section 303 clearly provides that upon acceptance of the provisions of The Pennsylvania Workmen's Compensation Act, the employee surrenders his right "to any form or amount of compensation or damages for any injury or death occurring in the course of the employment, or to any method of determination thereof, other than as provided, in article three of this act." (Emphasis supplied.)

Said Section 303, however, cannot, in my opinion, be construed constitutionally to preclude plaintiff's common law recovery against the carrier for negligent acts which played no part in the original injury occurring

[ 227 Pa. Super. Page 493]

    during the course of employment but which were committed by the carrier subsequent to and independent of the original injury without any participation or involvement of the employer. This was clearly indicated in DeJesus v. Liberty Mutual Insurance Co., supra, wherein the court clearly stated: "Both parties to the present action concede that the italicized portion of the Constitution, as quoted above,*fn4 [Pennsylvania Constitution, Art. III, § 18] precludes the enactment of legislation limiting the amount of compensation payable to employees for injuries other than those 'arising in the course of their employment '." (Emphasis supplied.)

Plaintiff, therefore, was entitled in his action of trespass to present evidence in support of those allegations which under the common law would create a breach of the duty of reasonable care required to be exercised by the carrier in its rendering of medical treatment to the plaintiff subsequent to and independent of the original injuries sustained during the course of his employment. The duty of reasonable care existed whether the medical treatment being so supplied by it was based on consideration or voluntarily undertaken without consideration. Once the carrier undertook to act, it was incumbent upon it to act with reasonable care in the circumstances. If it breached that duty, it is not immune from liability to the plaintiff in trespass.

[ 227 Pa. Super. Page 494]

Unlike the case of Raines v. Pa. Threshermen & Farmers' Mutual Casualty Insurance Co., 385 Pa. 464 (1956), and 391 Pa. 175 (1958), relied upon by the court below, we are not here concerned with a carrier's breach of promise or duty to provide medical care, but with a carrier actually undertaking to supply medical services but acting negligently in its undertaking, a distinction which was expressly noted in the court's opinion in Raines v. Pa. Threshermen & Farmers' Mutual Casualty Insurance Co., supra.*fn5

[ 227 Pa. Super. Page 495]

In Pascarella v. Kelley, 378 Pa. 18, 23 (1954), defendant Kelley was held liable for negligent repairs gratuitously undertaken to be performed by him even though he could not be held liable for the original injury, the court holding: "He was not liable at the point of original damage, having had no part in the acts causing it, but 'If a party make a gratuitous engagement and actually enters on the execution of the business and so negligently does it from want of care that another suffers damage thereby, an action will lie for this misfeasance': Rehder v. Miller, 35 Pa. Superior Ct. 344, 347. See also Fleming v. Philadelphia Company, 234 Pa. 74, 82 A. 1095; Harris v. Lewistown Trust Company, 326 Pa. 145, 191 A. 34." So, also, in the instant case, though the carrier was not liable in trespass for the original injury occurring during the course of the plaintiff's employment, it is not, in my opinion, immune from liability to plaintiff for new injuries or aggravation of the original injuries, caused by its later negligence in the performance of services rendered by it even if rendered gratuitously.

The fourth count of the Complaint in Trespass avers that appellee misrepresented and concealed from appellant the extent of the injuries inflicted upon him as a result of the medical and surgical treatment it caused him to undergo under its physician, Dr. Weldon.

*fn2 The lower court did not specify the basis of the grant of defendant's motion.

*fn4 "The General Assembly may enact laws requiring the payment by employers, or employers and employes jointly, of reasonable compensation for injuries to employes arising in the course of their employment, and for occupational diseases of employes, whether or not such injuries or diseases result in death, and regardless of fault of employer or employe, and fixing the basis of ascertainment of such compensation and the maximum and minimum limits thereof, and providing special or general remedies for the recollection thereof; but in no other cases shall the General Assembly limit the amount to be recovered for injuries. . . ." (Emphasis that of the court.)

*fn5 "The appellant's claim . . . is apparently based on the theory that the insurance company's failure to furnish him with competent and adequate medical services constituted malpractice -- a tort independent of the infliction of the original compensable injury. His citation of Waldron v. Aetna Casualty & Surety Co., 141 F. 2d 230 (C.A. 3), could have no other relevancy. But, that case and the present one are in no way analogous. Waldron v. Aetna Casualty & Surety Co., supra, was a case of positive malpractice in which, as the evidence showed, the insurance company was an active and willing participant. The appellant also quotes from Howard v. Berg, 86 D. & C. 358, 363-364, to the effect that there is 'nothing in the workmen's compensation laws of the Commonwealth which would abrogate the common-law cause of action of an injured employe against a physician or surgeon who by his negligence has caused new injuries or aggravated the original injuries received in the course of employment.' However, the appellant pleads no such fault on the part of the defendant or its representative. . . the most that the plaintiff avers is that the defendant company, acting by a representative, 'did on its own volition and free will assume and obligate itself to provide prompt, adequate and complete medical attention to the plaintiff, George Raines' but that 'the defendant did negligently fail to provide such medical care to the grave harm and detriment of the plaintiff, George Raines.' The plaintiff further averred that he relied on the representations of the defendant's agent and 'discontinued going to doctors of his own choice and waited for the defendant-insurance company to live up to the terms and conditions of its assumed obligation to provide him with complete, prompt and adequate medical care.'

"Thus the appellant pleads the defendant's breach of a gratuitous promise and nothing more. He does not plead a single fact from which could be derived a finding of negligence on the part of the insurance company that was the proximate cause of the aggravation of the appellant's injury." (pages 466-467) (Emphasis supplied.)

*fn3 "§ 501. Insurance of payment of compensation by employer; exemption therefrom; appeal from denial of exemption; effect of failure to issue; penalty."

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