(concurring in part, dissenting in part).
The matters which determine this appeal fall into four categories. They were so .presented by counsel and will be so treated here. All the matters raised in the briefs will be discussed in order to understand the implications of the statements in the majority opinion.
Two types of “benefits” inure to an injured employee under the Workmen’s Compensation Act of this state: (1) “Accident benefits”, that is, medical, surgical, hospital care, etc. Section 56-938, A.C.A.1939. (2) “Compensation” benefits awarded “on the basis of average monthly wage at the time of injury”. Section 56-952, A.C.A.1939.
If an employee is injured in an accident arising out of and in the course of his employment, he is immediately entitled to all the “accident benefits” described in 56-938, supra, and this is without any claim, petition or other affirmative action on his part, but to obtain “compensation” benefits he must not only suffer a compensable loss but make application therefor.
The Procedure.
On January 5, 1951, the respondent, Jerry B. Smith, while working for petitioner, the Inspiration Consolidated Copper Company, sustained an injury to his back. He was treated at petitioner’s hospital on the same day and in due time thereafter petitioner notified respondent, the Industrial Commission of Arizona, of the injury. It should be observed that the Workmen’s Compensation Act of Arizona does not require that an injured employee file a notice or report of injury with the Industrial Commission, but it does direct the filing by the employee of *363an application in order to obtain “compensation” benefits. Section 56-967, A.C.A.1939. Smith did not file an application for such “compensation” benefits until September 29, 1953 — over two years and nine months after the accident. His application was on a printed form entitled “Workman’s Report of Injury and Application for Benefits”— “To be Sent to the Industrial Commission of Arizona”. It complies with Section 56-967, supra, in every respect.
Thereafter by a letter dated October 3, 1953, the petitioner was informed by the Industrial Commission in part as follows:
“Please be advised that in checking this case, we find an accident reported in January of 1951, on the ‘no time lost sheet’, therefore, there is the possibility that the claimant’s claim is timely.”
The Workmen’s Compensation Act does not make provision for such a report referred to as a “no time lost sheet”. It does provide by Section 56-966, A.C.A.1939 that the employer notify the Commission of injuries. The customary practice is for the employer to send to the Commission a list of all employees who .have suffered an injury during the course of the preceding month. This list is the “no time lost sheet” referred to in the letter of October 3, 1953. The Commission thereafter uniformly treated the “no time lost sheet” listing as conferring jurisdiction upon itself to hear and determine the right to “compensation” benefits. The initial application of September 29, 1953, was treated as a petition to reopen a claim under the authority of a different section of the Act.
The procedure adopted by the Commission is questioned by the petitioner for the reason, as pointed out in the majority opinion, that an injured employee must file his application for “compensation” benefits within one year from the day the accident occurred “or the right thereto accrued.” The Commission insists that because it receives annually “many, many thousands” of these “no time lost sheet” listings, they should be treated through “administrative interpretation” as a claim upon which “compensation” benefits can be awarded. I cannot agree that “administrative interpretation” may supplant the specific provisions of a statute; nor that such be used to deny the petitioner a legal right, namely, the right to assert the staleness of respondent’s claim. Therefore, I am in accord with the majority that the Commission cannot make a valid award of “compensation” benefits unless predicated on the statutory application for such benefits. However, I am not in accord with the statement of the majority that the Commission “had not been vested with any jurisdiction in this case prior to September 29, 1953 * * * ”, for the reason that an employee, by the provisions of Section 56-938, supra, and 56-940 (e), infra, is immediately at the time of the injury entitled to “accident benefits”, which, if they are not provided by an employer, may be provided by the Commission on “its own motion”. It is my opinion that the juris*364diction of the Commission for the purpose of caring for an injured employee and providing the statutory “accident benefits” attaches immediately upon the happening of the accident.
The Accident Benefits.
On the 5th of April, 1954, there was filed in this cause by the Commission a document entitled “Decision upon Rehearing and Amended Findings and Award”, which among other things provided that respondent was entitled to “accident benefits”.
Section 56-940(e) provides:
“In the event the medical, surgical, or hospital aid or treatment being furnished by an employer is such that there is reasonable ground to believe that the health, life or recovery of any employee is endangered or impaired thereby, the commission may, upon application of the employee or upon its own motion, order a change of physicians or other conditions. If the employer fails to promptly comply with such order the injured employee may elect to have medical, surgical or hospital aid or treatment provided by or through the commission. * * * ”
(Emphasis supplied.)
The respondent Smith from time to time received treatment at the petitioner’s hospital. On September 12, 1953, not having improved, respondent sought independent medical advice and thereafter on the 21st day of September submitted to an operation by a private physician.
Petitioner complains that there was no attempt of any kind to comply with the above quoted statute. In this petitioner is correct. There was no application to the Commission for a change of physicians, no order by the Commission for such a change or setting forth “other conditions”; there is no order or evidence of any kind from which can be inferred that the private physicians treating respondent Smith were provided “by or through the commission”.
I am in accord therefore with the majority that the award of medical benefits is unlawful and must be set aside.
The Causation.
Evidence was taken in this cause involving 112 pages on behalf of respondent Smith and 72 pages on behalf of petitioner Inspiration Consolidated Copper Company. Practically the whole thereof was directed to the question of.the cause of Smith’s disability. This issue was made on a letter dated October 14, 1953, of Dr. I. E. Harris, Chief Surgeon for the Miami-Inspiration Hospital, addressed to the Commission which in part reads:
“ * * * I can, personally, see no relation what so ever to the condition that is described by the operating physician and the alleged injury of January 5, 1951.”
The respondent testified repeatedly that from the time of the accident his back continuously pained him. While testifying that this was of a continuous nature, he several times testified:
*365“ * * * Like I said, it (the pain) would lighten up for a couple of weeks and then the next couple of weeks it would come right back again. It was just a come-and-go proposition.”
Both of the respondent Smith’s private physicians, Dr. John R. Green and Dr. Alvin L. Swenson, testified in essence that the accident of January 5, 1951, could cause the spinal injury of a ruptured disk as confirmed by the operation in September of 1953. Without detailing more of the evidence, it is sufficient to say that the Commission did find on a disputed question of fact that the disability was a result of the accident of January 5, 1951. I am in accord with the majority that the evidence justifies the conclusion that the injury in question resulted from the accident of January 5, 1951.
The Timeliness of Application.
The petitioner has assigned as error the ■“accepting and acting” upon the application of September 29, 1953, by the Commission, for the reason that the application was not seasonably filed or the delay justified. This assignment is directed to the provision of paragraph three of the award which directs that “compensation” benefits be paid to the applicant for temporary disability. I disagree with the disposition of this portion of the case 'by the majority for the following reasons:
First. Since the Commission treated the ■“no time lost sheet” as a proper application upon which to base the award and did not base it's award upon the statutory application as filed by Smith over two and a half years later, it was not necessary and the Commission in fact did not determine whether the statutory application was timely or seasonably filed or the delay justified. Accordingly there was no adjudication by the Commission of this fact either actual or implied, and therefore no determination which this court is able to decide was erroneous.
Second. A majority of this court, in deciding that the statute of limitations commenced to run against Smith “in early September”, have usurped the function of the Industrial Commission in that they have assumed to exercise a right which is solely the prerogative of the Commission. By statute the authority of this court on appeal under the Workmen’s Compensation Act is set forth as:
“ * * * The review shall be limited to determining whether or not the commission acted without or in excess of its power; and, if findings of fact were made, whether or not such findings of fact support the award under review. * * * ” Section 56-972, A.C.A.1939.
Since it has been decided that the “no time lost sheet” is not an application within the meaning of the statute and that an award cannot be predicated thereon, then it is decided that “the commission acted without or in excess of its power”. This court is not authorized to proceed further *366and determine facts for this is exclusively the province of the triers of facts! Ocean Accident & Guaranty Corporation v. Industrial Commission, 32 Ariz. 54, 255 P. 598; Cole v. Town of Miami, 52 Ariz. 488, 83 P.2d 997; Kennecott Copper Corp. v. Industrial Commission, 62 Ariz. 516, 158 P.2d 887; Martin v. Industrial Commission, 75 Ariz. 403, 257 P.2d 596.
Third. The rule in this jurisdiction is as quoted by the majority opinion from Hartford Accident, etc., Co. v. Industrial Commission, 43 Ariz 50, 29 P.2d 142, 144, that “the statute runs, not from the day of the accident, but from the date the results of the injury became manifest and compensable.” (Emphasis supplied.) The record shows that Smith was never told that he might have suffered a herniated disk or that such might necessitate surgical relief. Petitioner’s doctor, I. E. Harris, chief surgeon for the Miami-Inspiration Hospital, treated Smith from time to time. He testified that the last time he saw Smith was on the 6th of April, 1953, and:
“Q. State whether or not there was anything in your examination of him and his history as given by himself as to his symptoms that indicated to you the presence of any such neurological symptoms as might have suggested a ruptured intro-vertebrae (sic) disc? A. There was nothing in the history or the physical examination at that time that suggested a disc.
“Q. Did he suggest to you that there might have been a disc? A. No.
“Q. Or have any theory as to what might have been wrong with his spine?
A. No.”
Since Smith suffered an injury the extent of which he did not have actual knowledge and which he could not reasonably be charged with knowing (he cannot be charged with being better informed than the doctor, English v. Industrial Commission, 73 Ariz. 86, 237 P.2d 815, 818), I am of the opinion that the “result of the injury” was not manifest “in early September” 1952. Smith’s ignorance continued until his examination by other doctors in September, 1953. The “results of the injury became manifest” at that time.
The majority seem to rest their opinion on the fact that the injury was manifest to Smith because he was continuously in pain. With this I am unable to agree for the following reasons. (1) Pain is the result of injury just as the ruptured inter-vertebral disk was the result of injury. The pain alone was manifest, not the ruptured intervertebral disk. (2) It is seldom that an injury is unaccompanied by pain. If pain is the test of the manifestation of an injury, then the “results of the injury” must be said to be manifest from the moment the injury occurs. “Manifest” means “made to appear”. Webster’s New International Dictionary, Second Edition, Unabridged. Obviously the results of an *367injury are not made to appear by the pain. (3) Irrespective of how much pain an injured employee suffers, an award is not made on the basis of his complaints of pain. Pain is not a compensable disability while a ruptured intervertebral disk is.