I concur in the result of the opinion of the majority, but disagree with the reason.
It is my opinion that the provisions of Sec. 293 relating to payment of reasonably necessary medical and surgical expenses as may be obtained by the injured employee during the first two years of disability must be interpreted and construed in pari materia with other provisions of the Workmen's Compensation Law and with consideration of the beneficent purposes of the act.
I would hold that the limitation of two years upon liability of the employer for payment of medical expenses may be tolled during denial of liability and until such issue is finally determined by agreement or by action of the courts. I would further hold that such limitation may be tolled, as in this case, where there is suspension of compensation due to dispute between the parties as to whether refusal to submit to medical or surgical treatment is reasonable.
In this case, employer suspended compensation under provisions of Sec. 293 because employee refused surgical treatment. Such suspension was founded upon the premise that surgical treatment was offered and was due employee at employer's expense. Employee was alleged to have rejected such proffered surgical treatment unreasonably and his compensation was suspended. Employee chose to resort to the court to secure reinstatement of compensation, contending his refusal of surgical treatment was not unreasonable. He had the right to take such action. He lost his contention that his refusal was reasonable and was directed by the trial court and by this court to accept the offered treatment or he would not receive any further compensation. He accepted the direction of the court and notified employer that he accepted the offered surgery.
Employer responded by saying, "Our offer is now withdrawn. We will not pay for such surgery now because during your contest of the reasonableness of our offered treatment time ran out on you. If you cannot now afford to pay for a second back operation you will receive no further compensation."
This action by employer is unconscionable. To permit it would require an employee to submit to any proffered medical or surgical treatment without contest or take the chance that time would run out on him during such contest.
Appellee-employee contends in argument that employer has waived the right to raise the two year statute by offering surgery at the time of the trial of the first case between these parties. (Scott v. Alabama Machinery Supply Co.,52 Ala. App. 459, 294 So.2d 160.) Perhaps such argument is sound, though I would not decide the case upon such argument. I would hold the statute is tolled by the suspension of compensation for refusal of employee to submit to surgical treatment and during the action of employee to contest such suspension together with a reasonable time after order by the court that refusal to submit was unreasonable.
The limitation for payment of medical expenses obtained by a claimant during the first two years of disability must be considered tolled while action is proceeding in court to determine liability and necessity of treatment. Denial of liability by the employer and subsequent court action could well extend for two years and more. Failure to obtain treatment at employee's expense during the contest could be claimed as a bar, as here, because two years after disability had expired.
The insistence by employer in this case that employee submit to further surgery is *Page 620 for the purpose of diminishing the claimed disability and thus employer's liability for compensation. Employer is now saying employee, in order to receive any further compensation, must undergo surgery which is calculated to diminish employee's disability and employer's liability but the cost of such surgery must be at employee's expense. This contention cannot be accepted.