Opinion

The six judges who heard this appeal being equally divided, the order is 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 *489fifteen (15) months of medical and surgical treatment the appellees above-named directed Dr. Weldon to cease furnishing said services and also that the appel-lee, 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 Chrcone, J. in Support op 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 Ms employment.1 *490It 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, 1958, 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 *491alternative for summary judgment.2 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., 383 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. 1). & 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. 1 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 iin-*492munity was intended. The title of section l3 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 occur*493ring 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 CoimliLution, as quoted above,4 [Pennsylvania Constitution, Art. Ill, §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. *494Unlike the case of Raines v. Pa. Threshermen & Farmers’ Mutual Casualty Insurance Co., 385 Pa. 464 (1956), and 391 Pa. 175 (1958), relied upon by tbe 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.5

*495In Pascarella v. Kelley, 378 Pa. 18, 23 (1954), defendant Kelley was held liable for negligent repairs gratuitously undertaken to be performed, by Min 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 Uf 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.

Accordingly, I would reverse the order of the court below and remand the case for trial consistent with this opinion.