The opinion
McALLISTEE, J.,
dissenting.
I cannot concur in the majority’s holding that the legislature meant something other than what it said when it directed the medical board of review to answer the question “Does claimant suffer from an occupational disease or infection?” This court has previously said that the issue of the existence of an occupational disease is for the medical board. White v. State Ind. Acc. Com., 227 Or 306, 329 , 362 P2d 302 (1961). I think that statement was correct, and that the qualifications in the majority opinion are unnecessary and unjustified.
Prior to 1959, the corresponding question for the medical board was whether the claimant suffered from “a disease or infection.” Laws of 1943, eh 442, § 7. Other questions for the board to answer were in the language of the statutory definition of occupational *519 disease. ① In 1959 the legislature expressly directed the board to make a finding as to whether claimant suffered from an occupational disease. Laws of 1959, ch 351, § 4. At the same time, review was divided between the medical board and the circuit court, the latter having jurisdiction to review “an issue of the timeliness of filing a claim or other legal issue not to be determined by the medical board of review.” Id., % 3. (Emphasis added.) This language, in my opinion, makes it unimportant whether the issue of occupational disease is purely factual, or a mixed question of law and fact. It is an issue expressly entrusted by the legislature to the medical board; only a legal issue which is “not to be determined by the medical board of review” is within the circuit court’s jurisdiction.
The legislative intent to limit judicial review of occupational disease claims is obvious. The occupational disease law was enacted in 1943, at a time when an accidental injury claimant under the existing laws had a right to a jury trial if his claim was denied. By contrast the occupational disease statutes provided only for review by the medical board, which was to pass upon every issue involved in the claim and whose find *520 ings “shall he final and binding.” In the White case we construed the 1943 provisions as not precluding court review of purely legal issues. At the time that case was decided, the legislature had already made the 1959 amendments dividing review jurisdiction between the medical board and the circuit court. We felt that our construction of the 1943 provisions was harmonious with the 1959 amendments.
In Pavlicek v. S.I.A.C., 235 Or 490 , 385 P2d 159 (1963), we held that the provisions authorizing review by the medical board and making its findings final and binding were not severable from the rest of the occupational disease law. It is clear from our opinion in that case that we understood the authority of the medical board to include more than merely making factual findings on the medical issues:
# * OES 656.814 makes the findings of the medical board of review final, i.e., not subject to judicial review. It is this last section which, when read together with the first two [OES 656.810 and 656.812], invites the question whether the legislature constitutionally may distribute a judicial function to an administrative tribunal and then make that tribunal’s judgments final. * * *” (Emphasis added.) 235 Or at 494 .
Eecognizing that the statutes gave the medical board a judicial function to perform, we noted their importance in the statutory scheme:
“* * * [I] t is apparent that the challenged sections are so essential to the legislative intent that without them the statute would not have been enacted.
“* * * The court is satisfied from a reading of the entire statute that the Assembly would not have enacted an occupational-disease law granting compensation under the terms and conditions found in *521 the present code unless at the same time it enacted the challenged procedural sections which cover the processing of such claims. * * *” 235 Or at 493-495 .
The most recent expression of this legislative intent is found in a 1965 amendment to ORS 656.807, adding subsection (4):
“The procedure for allowing, denying, processing or closing occupational disease claims shall be the same as provided for accidental injuries under ORS 656.002 to 656.590, except that any review of the claim after a hearing by the hearing officer shall be in accordance with ORS 656.808 to 656.814.” (Emphasis added.) Laws of 1965, ch 285, § 87a.
This amendment was part of an extensive revision of the workmen’s compensation laws which engaged the close attention of the legislature. It provides for uniformity of procedure for accidental injury and occupational disease claims in a number of matters, but expressly provides that review is to be governed by the provisions of the occupational disease law alone. And those provisions, as pointed out above, entrust the question of whether the claimant has an occupational disease to the medical board of review. The qualification of the members of the board to decide this question is provided for in ORS 656.820, which constitutes the Dean of the Medical School of the University of Oregon, the State Health Officer and the Workmen’s Compensation Board an appointing body to compile the list from which medical boards of review are selected. Those listed are to be:
“* # * [P]hysicians in good professional standing, who may or may not be residents of Oregon and whom the appointing body finds to have acquired expert knowledge of occupational diseases by training and experience * *
*522 That the majority has difficulty in fitting its holding into the statutory scheme is illustrated by a circumstance which the opinion characterizes as “odd”— that circuit court review of the legal issues precedes review by the medical board. This procedure is not odd if the jurisdiction of the medical board is left undisturbed as the legislature intended, because then the legal problems facing the circuit court will be entirely distinct from those questions within the competence of the medical board. Under the majority’s approach, however, circuit courts will find themselves deciding the legal issues before the relevant facts are finally determined.
The finality of the medical board’s findings also compels me to disagree with the majority on another aspect of this case. Even if the major question in this case is within the circuit court’s jurisdiction as the majority holds, it is inappropriate for us to decide the case at this time. The case is being remanded for proceedings before the medical board of review. There is no appeal from that body’s findings, and, in effect, they can overrule this court’s decision by making different findings of fact. I would require that any appeal to this court on the question of whether a claimant is suffering from an occupational disease within the statutory definition await the medical board’s examination and findings.
Section 2 defined occupational disease to mean “Any disease or infection which is peculiar to the industrial process, trade or occupation in each instance and which arises out of and in the scope of the employment, and to which an employee is not ordinarily subjected or exposed other than during a period of regular actual employment therein.”
Section 7 listed the questions which the medical board of review was to answer. Among those questions were the following:
Does claimant suffer from a disease or infection? If so, what?
Is such disease or infection, if any, peculiar to the industrial process, trade or occupation in which claimant has been last employed?
Has such disease or infection, if any, been caused by and did it arise out of and in the course of claimant’s regular actual employment in such industrial process, trade or occupation?