Tropiano v. Travelers Insurance , 455 Pa. 360 ( 1974 )

Opinion by

Mr. Justice O’Brien,

This appeal arises from an order of the Superior Court which affirmed the order of the Court of Common Pleas of Philadelphia, granting the motion of appellees, The Travelers Insurance Company and The Travelers Indemnity Company, for judgment on the pleadings or, in the alternative, a motion for summary judgment. We granted allocatur.

On April 22, 1964, appellant, Domenic A. Tropiano, an employee of Vare Brothers, was injured during the course of his employment. Appellant, at the time of his injury, was covered by workmen’s compensation insurance, and the insurance was written by Travelers. After a series of treatments proved unfruitful and, in fact, harmful to him, appellant filed suit in trespass against several doctors and appellees herein. Appellees then moved for a judgment on the pleadings and/or a motion for a summary judgment, which was granted on the basis that appellees herein were immune from common law tort liability on the basis of the Workmen’s Compensation Act. The issue then presented to this court, through its grant of allocatur, is as follows: Whether an employer’s workmen’s compensation carrier is immune from liability in trespass to an employee for injuries allegedly caused by tbe insurer’s negligence in supplying medical services in tbe treatment and care of any injury previously sustained by tbe employee in tbe course of bis employment.

In DeJesus v. Liberty Mutual Insurance Co., 439 Pa. 180, 268 A. 2d 924 (1970), and Brown v. Travelers Insurance Co., 434 Pa. 507, 254 A. 2d 27 (1969), our court beld that an insurance carrier was immune from common law tort liability with respect to actions filed by employees seeking recovery for injuries sustained in the course of their employment. Those decisions were based on tbe premise that tbe term “employer” in tbe workmen’s compensation act also covered tbe employer’s workmen’s compensation carrier.

Although DeJesus, supra, answered tbe question of tbe insurance carrier’s liability for negligence occurring during tbe course of an employee’s employment, it does not answer tbe difficult question before us today. In DeJesus, tbe court specifically stated as follows: “. . . in order to dispel any doubt that may have been caused by our decision in Brown, we now specifically find that tbe purpose of Section 18 [of tbe Pennsylvania Constitution], as amended, was to permit tbe General Assembly to enact a workmen’s compensation program, but to preclude tbe enactment of general legislation covering injuries other than those arising in the course of employment.” (Emphasis supplied). At page 184.

We must, therefore, decide if tbe injuries for which appellant seeks recovery herein arise during tbe course of bis employment because only for those injuries does an employer receive immunity from liability under tbe act.¹

We are of the opinion that acts of negligence arising out of medical treatment directed and controlled by the insurance carrier should not be classified as occurring during the course of employment. The medical treatment of injuries is a separate and distinct function of the insurance carrier which does not concern the employer and is not part of the employer’s business operations. The alleged acts of negligence in this case were committed by the insurance carrier subsequent to and independent of the original injury and with no involvement of the employer whatsoever.

Order reversed and case remanded for further proceedings consistent herewith.

1 While the “employer” is required to provide medical services to injured employees under §306 of the Act of 1915, now 77 P.S. §531, March 29, 1972, P. L. 159, No. 61, that section does not confer upon the “employer” an immunity from liability for negligence in the supplying of these services.