
    No. 11,408.
    Carlson v. Industrial Commission, et al.
    Decided March 1, 1926.
    Proceeding under the Workmen’s Compensation Act. Judgment for defendants.
    
      Affirmed.
    
    1. Workmen’s Compensation — Award of Referee — Review. In a workmen’s compensation ease, an order and award of the referee is to be considered final unless a petition for review is filed.
    2. Award of Commission — Petition for Review. Where a workmen’s compensation caso is heard by a referee, who, on petition for a review of his award refers the entire matter to the commission, it is held that no action can be brought in court to set aside the award of the latter, unless an application for a review of its award is also duly filed.
    
      Error to the District Court of the City and County of Denver, Hon. Julian H. Moore, Judge.
    
    Mr. Louis P. Erny, Mr. Everett Bell, for plaintiff in error.
    Mr. Fred Farrar, Mr. Wendell Stephens, for defendants in error.
    
      Department Two.
    
   Mr. Chief Justice Allen

delivered the opinion of the court.

This writ has been sued out to review tbe proceedings in the district court of tbe City and County of Denver wbicb resulted in a judgment for defendants, following tbe sustaining of their demurrer to tbe plaintiff’s complaint. Tbe action is one to set aside an award of tbe Industrial Commission, wbicb denied compensation to tbe claimant, tbe plaintiff below, plaintiff in error here.

Tbe sole question presented by tbe record for our determination is whether an application for review must first be made to tbe Commission before an action to review tbe award may be brought, in a case first beard by tbe referee and where a petition for review bad been duly filed after tbe award of tbe referee, and where tbe referee thereafter referred tbe entire case to tbe Commission.

In tbe instant case, a hearing was first bad before tbe referee of tbe Industrial Commission. The referee made an order denying compensation. Section 95 of tbe act of 1919, as amended by chapter 203, S. L. 1923 (p. 755), provides that “said order shall be tbe final award of tbe Commission, unless a petition for review is filed.”

Tbe claimant filed such petition for review, and under section 97 of tbe act of 1919, as amended by section 6, chapter 203, S. L. 1923 (p. 757), tbe referee may, in that case, “refer tbe entire case to tbe Commission.” This be did in tbe instant case. It was then tbe duty of the Commission, under tbe section last cited, to “review tbe entire record.” This tbe Commission did in tbe instant case. And, as provided in tbe same section, tbe Commission entered its award. Tbe award denied compensation. Tbe claimant did not file any further petition for rehearing. Tbe question is: Was be required to do so, before bringing an action in tbe district court?

The question must be answered in tbe affirmative. Section 97, last above cited, clearly contemplates a further petition for review in tbe following clause: “Tbe award of said Commission shall be final unless a petition to review same shall be filed by an interested party. ’ ’

Under section 95 of the act of 1919, as amended, first above cited, the order of the referee is the order of the Commission if a petition for review is not filed, but, from section 97, as amended, it is seen that if such a petition is filed, and the referee refers the eiitire case to the Commission, and the Commission itself afterwards makes an order, that order and not the referee’s order, is the award of the Commission.

The solution of the question before us is completed by noting section 98 of the act of 1919, as amended by section 7 of the act of 1923 (Sec. 7, Ch. 203, p. 757, S. L. 1923), which provides, among other things, that “no action * '* * to set aside * * * any * * * order * * * of the Commission * * * shall be brought unless plaintiff shall have first applied to the Commission for a review as herein provided.”

The claimant, plaintiff below, should have filed a petition for rehearing after the Commission itself acted, and having failed to do so, the district court had no jurisdiction to review the proceedings. Passini v. Industrial Commission, 64 Colo. 349, 171 Pac. 369; Stacks v. Industrial Commission, 65 Colo. 20, 174 Pac. 588.

This conclusion is not at variance with Carroll v. Industrial Commission, 69 Colo. 473, 195 Pac. 1097. There a second petition for rehearing was held to be unnecessary, but the first petition had been filed to review the award of the Commission, acting by the Commissioners, and the second award of the Commission was substantially the same as the first award.

The court did not err in sustaining the demurrer.

The judgment is affirmed.

Mr. Justice Denison and Mr. Justice Whiteord concur.  