MR. JUSTICE ERICKSON
delivered the opinion of the-court.
Plaintiff, on June 25, 1939, while employed at the Climbing Arrow Ranch in Gallatin county, was injured. The Industrial Accident Board was first notified of the accident on December 28, 1939, through a report received from Dr. Richard R. Sigler, that plaintiff had a hernia as a result of the accident. On January 11, 1940, the employer’s first report was made to-the board. On February 13, 1940, application for compensation, was made as prescribed by the statute. Compensation was allowed and paid. Application was made by plaintiff for the operating fee, for hernia operation, as provided in section 2921, Revised Codes, a hernia operation having been performed on February 7, 1941, that date being more than six months-after the date of the accident. The application was denied by the board and subsequently, after other legal steps had been taken, an appeal was taken to the district court for Gallatin county from the order of the board denying the claim for the-operating fee. The decision of the board was reversed and judgment entered for the plaintiff. The appeal is from that judgment.
Before taking up the main question involved it is necessary to dispose of the argument of the board that the-judgment should he reversed in that the plaintiff failed to establish his right to compensation in the first instance, which is necessary before he is entitled to the operating fee, for the reason that the record fails to show that he had given the notice to his employer provided for in section 2933, Revised Codes, or that the employer had actual knowledge of the injury as provided in that section.
In this suit the validity of the order granting compensation and the payment of it are not contested. The single question presented in the district court and upon this appeal is the-matter of the operating fee provided for in section 2921, Revised. Codes. On this point the board itself says this in its brief,.
after urging that the operation fee be denied for the reason ■above stated, that it, the board, "may now be estopped from urging this point on appeal, and as to the allowance for compensation, the appellant does not ask that its action be reversed.” The board, then, is asking on the one hand that its award of compensation be not disturbed even though the notice prescribed by the statute was not given by the injured workman to his employer, and on the other hand it is asking that the operating fee, which follows as a matter of course on award for compensation for hernia where an operation is had, be not allowed for the same reason. Even though we might be able to
go
back to the award of the board, from which no appeal was taken, on the theory that jurisdictional facts are not shown in the record to support the award, in view of the record in this case, we see no reason for doing so. No objection at any time was made by the board to the sufficiency of the showing of •actual knowledge on the part of the employer of the fact of the happening of the accident. At no time was claimant notified that his showing was insufficient to establish the fact of actual knowledge. While the record indicates that the employer was not notified by the claimant that the claimant suffered a hernia as a result of the accident until after the time prescribed in the statute for the giving of the notice, there is nothing in the record to indicate that the employer did not have actual timely knowledge of the happening of the incident out of which the injury arose. On the contrary, in the "Employer’s First Report of Injury,” filed with the board and appearing in the record, the next question after the one asking when the employer received notice from the employee, was "Did you or your managing superintendent in charge of work of injured employee at time of injury have actual knowledge of such accident?” The answer was, "Not until some time after the accident.” There is nothing to show that "some time after” means "more than thirty days after,” and the record therefore does not show affirmatively that actual knowledge was not received by the employer in time. Apparently the board drew
the contrary inference from the reports. The report of the-employer through its manager is direct and positive as to the happening of the accident and as to the circumstances under which the accident occurred, including the date which corresponds with the date given by the claimant himself. A letter sent by the employer to the board says that he makes his report, based upon his own memory, and that “I am pretty sure it is. June 25 but I may be in error on this point.” It is to be inferred from this language together with other facts appearing in the employer’s report to the board that the employer did have actual knowledge of the incident at or about the time of its occurrence but did not know that the claimant had suffered the hernia until some time later. Therefore, in view of what has transpired in this case and the record, this court will not go-back of the award of compensation for hernia on this point.
Plaintiff’s claim is predicated upon the provisions of section. 2921, supra, which provides:
“A workman, in order to be entitled to compensation for hernia, must clearly prove.-
“(1) That the hernia is of recent origin;
“(2) That its appearance was accompanied by pain;
“(3) That it was immediately preceded by some accidental strain suffered in the course of the employment; and,
“ (4) That it did not exist prior to the date of the alleged injury.
“If a workman, after establishing his right to compensation for hernia, as above provided, elects to be operated upon, a special fee of not to exceed one hundred dollars ($100.00) shall be paid by the employer, the insurer, or the board, as the case may be. In case such workman elects not to be operated upon, and the hernia becomes strangulated in the future, the results from such strangulation will not be compensated. ’ ’
The board’s position is that section 2921 must be read in coneetion with section 2917, which provides in part: “During the first six (6) months after the happening of the injury, the employer or insurer or the board, as the ease may be, shall
furnish reasonable services by a physician, or surgeon, reasonable hospital services and medicines when needed, and such ■other treatment approved by the board, not exceeding in amount the sum of five hundred dollars ($500.00), unless the employee shall refuse to allow them to be furnished, and unless such ■employee is under hospital contract as provided in section 2907 of this Act.”
Its position is that it may not pay the special operating fee in a hernia case where the operation is had more than six months after the date of the injury, as provided in section 2917. The trial court held section 2921 to be a special statute to which the terms of section 2917 as to the time limit are not applicable. "With this view we agree.
Section 2921 was before this court in
London Guaranty & Accident Co., Ltd., v. Industrial Accident Board,
82 Mont. 304, 266 Pac. 1103.
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MR. JUSTICE ERICKSON
delivered the opinion of the-court.
Plaintiff, on June 25, 1939, while employed at the Climbing Arrow Ranch in Gallatin county, was injured. The Industrial Accident Board was first notified of the accident on December 28, 1939, through a report received from Dr. Richard R. Sigler, that plaintiff had a hernia as a result of the accident. On January 11, 1940, the employer’s first report was made to-the board. On February 13, 1940, application for compensation, was made as prescribed by the statute. Compensation was allowed and paid. Application was made by plaintiff for the operating fee, for hernia operation, as provided in section 2921, Revised Codes, a hernia operation having been performed on February 7, 1941, that date being more than six months-after the date of the accident. The application was denied by the board and subsequently, after other legal steps had been taken, an appeal was taken to the district court for Gallatin county from the order of the board denying the claim for the-operating fee. The decision of the board was reversed and judgment entered for the plaintiff. The appeal is from that judgment.
Before taking up the main question involved it is necessary to dispose of the argument of the board that the-judgment should he reversed in that the plaintiff failed to establish his right to compensation in the first instance, which is necessary before he is entitled to the operating fee, for the reason that the record fails to show that he had given the notice to his employer provided for in section 2933, Revised Codes, or that the employer had actual knowledge of the injury as provided in that section.
In this suit the validity of the order granting compensation and the payment of it are not contested. The single question presented in the district court and upon this appeal is the-matter of the operating fee provided for in section 2921, Revised. Codes. On this point the board itself says this in its brief,.
after urging that the operation fee be denied for the reason ■above stated, that it, the board, "may now be estopped from urging this point on appeal, and as to the allowance for compensation, the appellant does not ask that its action be reversed.” The board, then, is asking on the one hand that its award of compensation be not disturbed even though the notice prescribed by the statute was not given by the injured workman to his employer, and on the other hand it is asking that the operating fee, which follows as a matter of course on award for compensation for hernia where an operation is had, be not allowed for the same reason. Even though we might be able to
go
back to the award of the board, from which no appeal was taken, on the theory that jurisdictional facts are not shown in the record to support the award, in view of the record in this case, we see no reason for doing so. No objection at any time was made by the board to the sufficiency of the showing of •actual knowledge on the part of the employer of the fact of the happening of the accident. At no time was claimant notified that his showing was insufficient to establish the fact of actual knowledge. While the record indicates that the employer was not notified by the claimant that the claimant suffered a hernia as a result of the accident until after the time prescribed in the statute for the giving of the notice, there is nothing in the record to indicate that the employer did not have actual timely knowledge of the happening of the incident out of which the injury arose. On the contrary, in the "Employer’s First Report of Injury,” filed with the board and appearing in the record, the next question after the one asking when the employer received notice from the employee, was "Did you or your managing superintendent in charge of work of injured employee at time of injury have actual knowledge of such accident?” The answer was, "Not until some time after the accident.” There is nothing to show that "some time after” means "more than thirty days after,” and the record therefore does not show affirmatively that actual knowledge was not received by the employer in time. Apparently the board drew
the contrary inference from the reports. The report of the-employer through its manager is direct and positive as to the happening of the accident and as to the circumstances under which the accident occurred, including the date which corresponds with the date given by the claimant himself. A letter sent by the employer to the board says that he makes his report, based upon his own memory, and that “I am pretty sure it is. June 25 but I may be in error on this point.” It is to be inferred from this language together with other facts appearing in the employer’s report to the board that the employer did have actual knowledge of the incident at or about the time of its occurrence but did not know that the claimant had suffered the hernia until some time later. Therefore, in view of what has transpired in this case and the record, this court will not go-back of the award of compensation for hernia on this point.
Plaintiff’s claim is predicated upon the provisions of section. 2921, supra, which provides:
“A workman, in order to be entitled to compensation for hernia, must clearly prove.-
“(1) That the hernia is of recent origin;
“(2) That its appearance was accompanied by pain;
“(3) That it was immediately preceded by some accidental strain suffered in the course of the employment; and,
“ (4) That it did not exist prior to the date of the alleged injury.
“If a workman, after establishing his right to compensation for hernia, as above provided, elects to be operated upon, a special fee of not to exceed one hundred dollars ($100.00) shall be paid by the employer, the insurer, or the board, as the case may be. In case such workman elects not to be operated upon, and the hernia becomes strangulated in the future, the results from such strangulation will not be compensated. ’ ’
The board’s position is that section 2921 must be read in coneetion with section 2917, which provides in part: “During the first six (6) months after the happening of the injury, the employer or insurer or the board, as the ease may be, shall
furnish reasonable services by a physician, or surgeon, reasonable hospital services and medicines when needed, and such ■other treatment approved by the board, not exceeding in amount the sum of five hundred dollars ($500.00), unless the employee shall refuse to allow them to be furnished, and unless such ■employee is under hospital contract as provided in section 2907 of this Act.”
Its position is that it may not pay the special operating fee in a hernia case where the operation is had more than six months after the date of the injury, as provided in section 2917. The trial court held section 2921 to be a special statute to which the terms of section 2917 as to the time limit are not applicable. "With this view we agree.
Section 2921 was before this court in
London Guaranty & Accident Co., Ltd., v. Industrial Accident Board,
82 Mont. 304, 266 Pac. 1103. As the Act then read the surgical fee provided for in hernia cases was $50. It was there sought to recover the sum of $100 for the hernia operation under the provisions of section 2917. This court held that section 2921 was a special Act, complete in itself as to the fee to be allowed, and that section 2917, which in ordinary cases allows up to $500, was not applicable, and that the board was in error in allowing a fee in excess of the $50 then provided by section 2921. No time limit, ■of course, appears in the Act except that the fee may not be ■allowed until after the workman has established his right to ■compensation. The use of the language “after establishing his right to compensation” indicates very strongly that the legislature had no intention of applying the six-months limitation, •as in many cases the establishment of the right to compensation may take longer than six months as provided in section 2917.
The purpose of section 2921 is very apparently to encourage the repair of the injury by operation. The nature of fhe injury is such that good reason may exist for the legislature to treat it differently from other injuries. In many cases the full extent of the injury is not apparent immediately after the accident which caused it. No reason presents itself which
would require our reading into the Aet a proviso to the effect that the provisions of section 2917 should control as to the time in which the operation may be had.
Is there any reason why the legislature may not provide a time limit for certain operations and not for hernia operations? Exactly the same question was presented to the Texas court in
Texas Employers’ Ins. Ass’n v. Henson,
Tex. Civ. App., 31 S. W. (2d) 669. In that state there is a special provision for hernia cases in section 12b of Article 8306, Revised Statutes of Texas 1925, which provided for medical and hospital bills. In another section of the Workmen’s Compensation Act of that state a time limit of four months is put on the time in which medical and hospital bills may be incurred for the treatment of injured workmen. No such limitation appears in section 12b of Article 8306. The court held that the specific provision as to hernia cases was not controlled by the general statute and that claims, for medical and hospital service, even though incurred after the four months provided by the general statute, could be properly paid.
In 71 C. J., p. 777, the rule is stated thus: “Where the statute makes complete provision for medical treatment in hernia cases and contains no limitation of time within which the expenses must be incurred, the time limit applicable to ordinary cases will not govern.”
No error appearing, the judgment is affirmed.
Mr. Chief Justice Johnson and Associate Justices Anderson and Adair concur.