The opinion
*299 SCHWAB, C. J.,
concurring in part and dissenting in part.
I join that portion of the majority opinion that holds General Telephone is not responsible for payment of compensation. I dissent from that portion of the majority opinion that holds the circuit court had no jurisdiction over SAIF’s cross-appeal. 1
The relevant facts are simple. All parties to this proceeding have had a full hearing on the facts and law before a referee and before the Workmen’s Compensation Board. Yet the majority holds that SAIF cannot appeal the Board’s resulting decision unless it requests another hearing before the Board. 2
ORS 656.278 grants the Workmen’s Compensation Board what is known as the Board’s "own-motion jurisdiction”; this consists of authority to change awards of compensation without regard to any of the time limits in the compensation law. As it is specifically authorized to do by ORS 656.726(4), 3 the Board has adopted administrative rules governing the proce *300 dures on its own-motion-jurisdiction cases. See, OAR 436-83-810 to 436-83-830.
These rules require that requests to the Board to exercise its own-motion jurisdiction be written and documented. OAR 436-83-810(1)(a) and (b). The rules then contemplate the possibility of either a decision on the submitted materials or a hearing:
"If the Board is unable to decide after review of the record * * * it will refer the matter to the Hearings Division with proper instructions for a fact-finding hearing.” OAR 436-83-810(1)(d).
"Upon completion of the hearing, the referee shall provide the Board with all documentary evidence presented, and such record of oral proceedings as may be necessary, and proposed findings and recommendations.” OAR 436-83-820(2).
No party here claims these regulations are unreasonable or exceed the specific grant of authority stated in ORS 656.726(4).
Once the Board renders an own-motion-jurisdiction decision, judicial review is governed by ORS 656.278(3):
"The claimant has no right to a hearing, review or appeal on any order or award made by the board on its own motion, except when the order diminishes or terminates a former award or terminates medical or hospital care. The employer may request a hearing on an order which increases the award or grants additional medical or hospital care to the claimant.”
I think it imperative that we interpret ORS 656.278(3) together with the Board’s specifically-authorized implementing regulations. It is obvious to me that under those regulations the Board contemplates making own-motion orders either: (1) on the basis of written materials submitted, or (2) on the basis of a hearing record. I therefore submit that ORS 656.278(3) should be read as requiring a hearing request and a hearing as prerequisites to judicial review only when the Board issues an own-motion *301 order solely on the basis of written materials submitted.
My interpretation attributes to the legislature the intent that there be an opportunity for a hearing after an own-motion order only when there was no opportunity for a hearing before the order. My interpretation avoids attributing to the legislature the intent that there possibly be a hearing after an own-motion order, see n 2, supra, even though there was a hearing before the order. There is ample precedent for such a commonsense interpretation of the procedural requirements of the compensation law. Stroh v. SAIF, 261 Or 117 , 492 P2d 472 (1972); see also, State v. Irving, 268 Or 204 , 520 P2d 354 (1974).
I note that in passing on the merits of claimant’s appeal, the majority indirectly passes on the merits of SAIF’s cross-appeal. Nevertheless, I dissent because of the undesirable precedent the majority’s analysis of the jurisdictional issue creates.
The majority does not deal with what the Board is expected to do when it receives a request for a hearing on issues that have already been the subject of a hearing. Hopefully, the majority would be content if the Board treated such a post-decision hearing request as a petition for rehearing or reconsideration which could be denied without in fact having to hold a second hearing. However, the majority appears to require that there literally be a second hearing.
"The hoard may make and declare all rules and regulations which are reasonably required in the performance of its duties, including but not limited to rules of practice and procedure in connection with hearing and review proceedings and exercising its authority under ORS 656.278. Such rules may provide for informal prehearing conferences in order to expedite claim adjudication, amicably dispose of controversies, if possible, narrow issues and simplify the method of proof at hearings. The rules shall specify who may appear with parties at prehearing conferences and hearings. ORS chapter 183 is applicable whenever specific procedures covering rulemaking are not provided for in ORS 656.001 to 656.794.” ORS 656.726(4).