This is a workmen's compensation case in which the petitioner-employer appeals the lower court's order requiring him to pay the expenses for a surgical operation to be performed on respondent-employee.
The parties in this case have been before this court previously and our decision in the prior appeal was rendered on April 3, 1974. The facts up to the time of this appeal *Page 618 can be found in that opinion, Scott v. Alabama Machinery and Supply Co., 52 Ala. App. 459, 294 So.2d 160.
The facts since the last appeal, in which we held that compensation benefits to the respondents were suspended until he agreed to submit to additional surgery, are briefly stated as follows: On August 28, 1974, respondent filed a motion with the trial court stating he was now ready to undergo the recommended surgery and requesting that the court order petitioner to provide and furnish the surgery.
Petitioner filed an objection to respondent's motion. The trial court, on October 10, 1974, overruled this objection and directed petitioner to pay the expenses to be incurred by the surgery. Appeal was then had to this court.
Petitioner's appeal is bottomed on the premise that the order of October 10, 1974, is contrary to the language of Tit. 26, § 293, Code of Ala. (1940), and that the trial court therefore erred in ordering the operation.
In its pertinent part at the time of the proceedings below, Tit. 26, § 293, Code of Alabama (1940), as amended, reads as follows:
In addition to the compensation herein provided, the employer shall pay the actual cost of reasonably necessary medical and surgical treatment and attention, medicine, medical and surgical supplies, crutches, original artificial members, and other apparatus, as may be obtained by the injured employee during the first two years of disability, . . ." [Emphasis ours]
Petitioner, through able counsel, contends that the accident having occurred on January 14, 1971, it is no longer liable for the expenses inasmuch as the expenses will not be incurred during the "first two years of disability."
This court is of the opinion that we have already answered the contention of petitioner in our prior opinion involving these two parties [Scott v. Alabama Machinery and Supply Co.,52 Ala. App. 459, 464, 294 So.2d 160, 164] when we stated, in extending our opinion on rehearing, that:
"Applicant further asserts that we should impose a thirty day period in which the employee could submit to the surgery. There is no time limit prescribed in Title 26, Section 293 of the Alabama Code. Section 293 provides that payments will be suspended during the time of the refusal, nothing more. It is not the place of this court to draft into statutes arbitrary time limits when the legislature has not seen fit to do so. In interpreting a statute of this kind, we can be guided only by the standard of reasonableness, and the facts of each case will be determinative of that issue."
To this court, in the factual situation we have before us where the injured respondent refused further surgery but filed suit requesting benefits due him within two years, the trial court finding his refusal unreasonable, that decision then being appealed to this court where we held that the compensation benefits were to be suspended until the respondent underwent the operation, the above section, to wit, Tit. 26, § 293, Code of Ala. (1940), relied upon by petitioner is not applicable. We note that it was not until April 3, 1974, over three years after the accident, that it was finally adjudicated that respondent's refusal to undergo the operation was unreasonable.
Under facts such as these, the test as set out earlier in our quote from Scott, supra, to determine whether or not the time in which the employee consents to the operation is an appropriate time is the standard of "reasonableness."
In this instance, where only four months have elapsed since this court ruled that the appellant must "have" the operation, one involving further surgery to his back, we cannot say that time in which the operation was requested is unreasonable. *Page 619
The case is therefore and accordingly affirmed.
Affirmed.
BRADLEY, J., concurs.
WRIGHT, P. J., concurs in the result.