The opinion
PETERSON, C. J.,
concurring
I agree with the result, but upon a different analysis. In denying the claimant’s motion the Board relied upon two rules, OAR 436-83-480 and OAR 436-83-700(5), which have no application to Board consideration of motions to remand for further evidence taking, correction, or other necessary action. For this reason, the case should be remanded to the Board. 1
I disagree with the newly-discovered evidence/newly - created evidence dichotomy discussed on pages 46-49 of the majority opinion. I believe that “newly-created evidence” is a species of newly-discovered evidence which, by definition, could have been discovered and produced at the hearing before the referee. Therefore, a separate rule need not be promulgated to cover “newly-created evidence.”
The Board can promulgate a rule that in considering motions to remand under ORS 656.295(5) the party would have to make the type of showing required under present OAR 436-83-480(2).