Opinion
No. 14624.
Decided October 2, 1939.
Error to the District Court of Gunnison County,
A proceeding under the Workmen's Compensation Act. Award in favor of claimant. The latter, without seeking a review by the commission of its finding and award, instituted action in the district court where a more favorable award was adjudged.
Reversed.
1. WORKMEN'S COMPENSATION — Award — Application for Review — Court Jurisdiction. A review of the findings of a referee by the Industrial Commission does not meet the statutory requirement that no action to change an award of the commission shall be brought unless plaintiff shall have first applied to the commission for a review; and unless there is an application for review of the commission's own award, predicate for judicial review is lacking.
Hon. George W. Bruce, Judge.
Mr. BYRON G. ROGERS, Attorney General, Mr. FRANK A. BRUNO, Assistant, Mr. HAROLD CLARK THOMPSON, Mr. LOUIS SCHIFF, for plaintiffs in error.
No appearance for defendant in error.
A proceeding before the Industrial Commission. October 5, 1938, a commission referee found the claimant had sustained permanent partial disability, and made an award. December 12, 1938, the commission, proceeding on claimant's petition for review of the referee's finding and award, found and awarded as had the referee. Claimant did not seek at its hands review of the commission's award. Instead, he sought direct review by an action instituted in the district court, where the finding was more favorable and a greater award adjudged.
Plaintiffs in error contend that the court was without jurisdiction to review the proceedings of the commission because of claimant's failure to comply with the provisions of section 377, chapter 97, '35 C. S. A., which reads: "No action, proceeding or suit to set aside, vacate or amend any finding, order or award of the commission, * * *, shall be brought unless the plaintiff shall have first applied to the commission for review * * *." Construing the statute, we have held that review of the referee's finding and award by the commission does not meet this statutory requirement, and that unless there is application for review of the commission's own award, predicate for judicial review is lacking. Industrial Com. v. Martinez, 102 Colo. 31, 77 P.2d 646. See, also, Mishmish v. Hayden Coal Co., 98 Colo. 373, 56 P.2d 21; Stacks v. Industrial Com., 65 Colo. 20, 174 Pac. 588. Clearly, the record considered, the court was powerless to entertain the action.
That there may be order of dismissal, let the judgment be reversed.
MR. JUSTICE BAKKE and MR. JUSTICE BURKE concur.