Thomas Jefferson Lowery, by way of appeal from an adverse decision of the Industrial Accident Board, brought this suit seeking to recover compensation for allegedly total and permanent disability resulting from hernia sustained by him as an employee of National Tank Company. The National Mutual Casualty Company, compensation insurance carrier for said employer, was the defendant. Plaintiff’s petition (trial pleading), among other things, alleged that “he has been willing at all times and is willing now [file date of pleading, October 10, 1938] to undergo a surgical operation, but the defendant has at all times refused to have him operated on as it is their legal duty to do, and have refused to pay .him any compensation * * * The plaintiff demands of the defendant an operation for said hernia at the expense of said defendant, and said defendant has refused to furnish same unto plaintiff and he is now totally and permanently disabled and is therefore entitled to compensation under the general provisions of the Workmen’s Compensation Act.”
In a jury trial the case being submitted on special issues, all issues were found in favor of plaintiff. Included in the issues so submitted and found, was one inquiring whether “Lowery has at all times since the date of the development of the hernia, *1047if any, been willing to submit to a surgical operation.” Another made inquiry whether “The National Mutual Casualty Company has at all times refused to provide a surgical operation for plaintiff’s said hernia, if any, resulting from the injury, if any, inquired about in special issue No. 1.” Judgment having been' rendered for plaintiff on the verdict awarding recovery of $4,-961.59, the defendant has appealed.
The merit of most of appellant’s assignments of error and propositions thereunder is either wholly dependent upon or materially affected by the proper construction of R.S.1925, Art. 8306, sec. 12b. The general question presented may, we think, adequately be stated thus: Where an employee of an employer subject to the Workmen’s Compensation Statutes sustains an injury consisting of, or resulting in, hernia under the specified circumstances rendering such an injury compensable, and the insurance carrier fails or refuses to “provide * * * surgical treatment by * * operation”, not being excused from doing so by refusal of the employee to submit to such operation, may the employee in a timely suit to set aside an adverse decision of the Industrial Accident Board, upon his claim for compensation, recover for total and permanent disability, if any, resulting from such injury? This question, we think, must be answered in the affirmative.
Hernia differs from other general injuries in two general respects; one being absolute and the other conditional. It differs absolutely in certain required special elements to render the injury compensable. Superadded to the ordinary elements of an injury as defined in R.S.1925, Art. 8309, sec. 1, are (to use the numbering in the statute) these three: (2) appearance of the hernia “suddenly and immediately following the injury” (accident).- (3) Nonexistence of hernia “in any degree prior to the injury for which compensation is claimed.” (4) Pain accompanying the injury. (We have designedly omitted mention of (1) only because the existence of a hernia as an injury is manifestly not special and would have to be shown even if hernia was in no respect different from any other general injury.)
These elements may properly be .regarded as a matter of required special proof of hernia as an injury. The language of the statute is “it must be definitely proven” etc.
The conditional difference between hernia and other general injuries is in the compensation to be awarded. The statute in terms purports to impose upon the insurance carrier the duty to provide an operation. The language of the statute is that “where liability for compensation exists, the association shall provide competent surgical treatment by radical operation.”1 Unless such operation is provided and the employee submits to the operation and it is a success there is no qualification or abridgment of the rights of the employee to compensation for disability resulting from hernia, the same as any other general injury.
The Industrial Accident Board has potential jurisdiction to determine whether an employee should have an operation for hernia. A prerequisite fact es*1048sential, in a particular case, to the exercise of such jurisdiction is the refusal of the employee to submit to such operation. Only when the potential jurisdiction of the Board becomes active by refusal of the employee to submit to an operation is the Board empowered to make any order which can have the effect, in any event, to qualify or restrict the right of the employee to compensation for disability resulting from hernia the same as any other general injury. If the active jurisdiction of the Board be invoked by refusal of the employee to submit to a proffered operation there still is no absolute qualification upon, or restriction of, his right to compensation as for a general injury. If the Board, following the prescribed procedure, decides that the employee should not undergo an operation then the employee (in the language of the statute) “shall, if unwilling to submit to the operation, be entitled to compensation for incapacity under the general provisions of this law.” If the decision of the Board be in favor of an operation and the employee submits thereto but the operation is not a success there results no abridgment of the employee’s right to compensation as for a general injury. If the operation results in death the rights of the beneficiary to claim as for general injury remains unaffected.
The only conditions upon which the em-, ployee may be restricted to compensation different from a general injury are (1) that the jurisdiction of the Board to determine the advisability of an operation be invoked by the fact of the refusal of the employee to submit to an operation; (2) that the Board, exercising such jurisdiction, decide against an operation, but the employee submits anyway and the operation is not a success. (In such case compensation shall consist only of the expenses of the operation and weekly compensation for, one year). (3) That the Board, exercising its jurisdiction, decide in favor of an operation and the employee refuses to submit. (In that case compensation is limited to payment of average weekly wages for 26 weeks).
The statute does not purport to condition any right of the employee upon his making request, or demand, for an opera-' tion. No duty to request or demand an operation we think rests upon the employee and for one very good reason, among possibly others, that the employee would not be expected to know whether he was in need of an operation or not. That would be a matter naturally and primarily for the decision of the insurer’s medical advisers. The statute, we think, clearly implies the intention to give the insurer the right, in the nature of an option, if the facts to be determined as prescribed so warrant, to-substitute a different compensation from that provided for a general injury. In the instant case that optional right has not been-exercised by appellant, nor was s.uch right rendered nonavailable to the appellant by any action of the employee. Such a construction of the statute has been forecast in previous decisions of the courts of this: state, particularly in Texas Employers’ Insurance Ass’n v. Neatherlin, Tex.Com.App., 48 S.W.2d 967; Texas Employers’ Insurance Ass’n v. Henson, Tex.Civ.App., 31 S.W.2d 669, 671, reversed on another ground, Tex.Com.App., 48 S.W.2d 970; Texas Employers’ Insurance Ass’n v. Howell, Tex.Civ.App., 37 S.W.2d 343; Columbia Casualty Co. v. Ray, Tex.Civ.App., 5 S.W.2d 230.
In order to state a cause of action: entitling plaintiff to an award of compensation for total and permanent disability for an injury consisting of hernia he no-doubt considered that it was necessary by affirmative averment to show that his rights had not been limited as said section 12b conditionally provides may be done. To-this end appellee alleged that appellant had-refused to provide for the operation and further that appellee had at all times been willing to submit to an operation. Either averment was sufficient, the purpose being merely to exclude a possible inference from the facts otherwise alleged that he had no right to recover- as for general injury.
Ther.e was no error in admitting evidence to prove said allegations nor in submitting the facts so averred as issues. Some proffered evidence of a refusal of the insurer to provide the operation was excluded, but that 'all such evidence was not excluded is indicated by the fact that the trial judge submitted the issue — an action which presupposes the existence of evidence to support the issue. Evidence that the employee was willing to submit to an operation, together with evidence that no-such operation had been performed, was alone, we think, some evidence of a refusal on the part of the employee to provide for the operation, particularly in the only sense material, namely, that the surgical *1049treatment was not provided nor provision for it excused.
Complaint is made of testimony •of Dr. Martin H. Jansen admitted over ■objections to the effect that (1) hernia ■can result by strain or stress or heavy lifting, (2) that it could have occurred under •a fact situation stated hypothetically to him, and (3) that within a day or two after the injury there would not necessarily be blood, lacerations or swelling where the bernia occurred. There is so little question in our minds of the admissibility of such testimony, given by a duly qualified expert witness, that we deem it unnecessary to •discuss the matter at length. The admissibility of such testimony, we think, is fully •sustained by the decisions of which we need only mention the following: Republic Underwriters v. Howard, Tex.Civ.App., 69 S.W.2d 584; El Paso Electric Co. v. Beckman, Tex.Civ.App., 89 S.W.2d 470; Carter v. Travelers Ins. Co., 132 Tex. 288, 120 S.W.2d 581.
The court gave a definition of “injury or personal injury” as “Damage or harm to the physical structure of the body and such diseases or infection as naturally result therefrom.” This was objected to, and the admission of the testimony over such objection is here complained of on the ground that there was no evidence that any disease or infection resulted from the injury, if any, and that it was on the weight of the evidence, was confusing to the jury and permitted them to speculate •on injuries of which there was no proof and there was no pleading that there were any “diseases or infection from the injury.” It would seem to be a sufficient answer to say that the definition given is the definition declared in the law itself. Revised Statutes 1925, Art. 8309, sec. 1. Revised Statutes 1925, Art. 2189, requires that the court in submitting special issues shall “submit such explanations and definitions ■of legal terms as shall be necessary to enable the jury to properly pass upon and render a verdict on such issues.” The definition complained of was given conform-ably to this requirement of law. The fact that eminent counsel can seriously question the propriety of giving a statutory definition, where definition or explanation is required, is a subject of interesting speculation. Similar contentions have several times been made in' cases before this court. Traders & General Ins. Co. v. Weatherford, Tex.Civ.App., 124 S.W.2d 423; Liberty Mutual Ins. Co. v. Boggs, Tex.Civ.App., 66 S.W.2d 787; Texas & P. Ry. Co. v. Phillips, Tex.Civ.App., 56 S.W.2d 210. The nature of the objection made furnishes a clue to the answer. The reason is to be found in a failure to appreciate a most important distinction, namely, that the definitions or explanations which said Art. 2189 requires shall be given are not special charges or instructions upon the law of the case which R.S.1925, Art. 2186, provides may be given. Special charges or instructions on the law of the case are not only not required to be given, but under the decisions are prohibited in a case submitted upon special issues. Therefore, the “explanations and definitions of legal terms” required to be given in cases submitted upon special issues and special charges or instructions on the law of the case prohibited from being given cannot, of course, be the same thing. The theory of the objection to the definition in the instant case is that there was no evidence of disease or infection as a part of the alleged injury. Manifestly the principle invoked is that the court should not give a special charge or instruction upon a phase of the case not raised by any evidence. The principle has no application whatever. The meaning of a legal term is not different in different cases. Considering that the jury is not to be concerned with the law of any case when the case is submitted to them upon special issues, they are to be given only, such explanations or definitions of legal terms as are necessary to enable them to make their findings (conclusions of fact) upon the issues of fact submitted. There is simply no ground upon which to base a contention that the same definition of the same legal term used' in the same sense should not be the same in all cases. As we have heretofore pointed out, it may be true that the failure to give all of a statutory definition may not, because of the nature of the evidence, be prejudicial. But it does not follow that it would not be proper to give the definition prescribed by law, or a correct definition whether prescribed by law or not.
We also overrule the contention that there was no evidence that appellee suffered hernia as alleged. It is deemed unprofitable to extend this opinion by setting forth the evidence upon which we reach the conclusion that the evidence raised an issue of fact for the decision of the jury.
*1050We reach the same conclusion Upon the contention that the evidence did not raise issues of fact as to appellee having sustained total and permanent disability as the result of his injury. Also, that the evidence did not raise an issue of fact as to appellee’s average weekly wages.
Being of the opinion that there is no error shown, and that the judgment should be affirmed, it js accordingly so ordered.
We -would not be understood as deciding that the insurer is under an absolute duty to provide an operation. If the medical advisers of the insurer were of the opinion that an operation would not effect a restoration of earning capacity or shorten the period of disability resulting from hernia, it is believed that no duty would exist to “provide competent surgical treatment by radical operation.” The statutes contemplate that there may be cases where because of chronic diseases or for other reasons it may be “more than ordinarily unsafe to submit to such operation.” If the insurer be advised of the existence of any such condition it would seem there could exist no duty to offer to operate. If the medical advisers were of the opinion that an operation would endanger the life of the employee it would be most unreasonable to hold that nevertheless the insurer was under a duty to operate. A more reasonable construction would be, we think, that it affords the insurer an option to minimize the possible extent of its liability by an operation when it is considered that the operation will have such effect.
Under this view it may be considered that plaintiff unnecessarily tendered issues as to the refusal of the appellant to provide an operation and of appellee’s willingness to submit to an operation. We cannot see, however, that the proceedings having reference to such issues can be reasonably calculated to prejudice any right of appellant, and may be regarded as surplusage.