
FILED:  July 8, 2005
IN THE SUPREME COURT OF THE STATE OF OREGON
In the Matter of the Compensation of
Jimmy O. Dougan, Claimant.
JIMMY O. DOUGAN,
Petitioner on Review,
v.
SAIF CORPORATION
and DEPARTMENT OF CONSUMER AND BUSINESS SERVICES,
Respondents on Review.
(WCB 02-0094M; CA A119427; SC S51645)
En Banc
On review from the Court of Appeals.*
Argued and submitted May 9, 2005.
Christopher D. Moore, of Malagon, Moore & Jensen, Eugene,
argued the cause and filed the brief for petitioner on review. 
Alice M. Bartelt, Salem, argued the cause and filed the
brief for respondent on review SAIF Corporation. 
Judy C. Lucas, Assistant Attorney General, Salem, argued the
cause and filed the brief for respondent on review Department of
Consumer and Business Services.  With her on the brief were Hardy
Myers, Attorney General, and Mary H. Williams, Solicitor General.
BALMER, J.
The decision of the Court of Appeals is vacated, and the
petition for judicial review is dismissed.
*Judicial Review from the Workers' Compensation Board. 193 Or App 767, 91 P3d 781 (2004).
BALMER, J.
In this workers compensation case, claimant asks this
court to reverse an order of the Workers Compensation Board
(board) that the board issued under its statutory "own-motion"
authority.  Claimant sought an award of permanent partial
disability benefits for his worsening hip condition.  The State
Accident Insurance Fund (SAIF) awarded claimant only temporary
disability compensation.  The board approved the award of
temporary disability compensation, but it refused to award
permanent partial disability benefits.  Claimant sought judicial
review, and the Court of Appeals affirmed the board's order.  We
conclude that the appellate courts lack jurisdiction to review
the board's order, because the legislature has limited appellate
jurisdiction over claimants' challenges to own-motion orders to
those that diminish or terminate an award.  Accordingly, we
vacate the decision of the Court of Appeals and dismiss the
petition for judicial review.
We take the facts from the record.  In February 1976,
claimant suffered a compensable right hip fracture.  In December
2000, claimant's right hip condition worsened.  Claimant
requested that SAIF reopen his claim.  SAIF filed a
recommendation with the board, and, in February 2001, the board
reopened claimant's 1976 claim under its own-motion authority. 
See ORS 656.278(1) (board may modify "former findings, orders or
awards" on "its own motion").  In July 2001, claimant's treating
physician performed the hip-replacement surgery.  In February
2002, the physician concluded that claimant was medically
stationary.  In March 2002, SAIF closed the claim, declaring
claimant medically stationary as of February 2002.  SAIF awarded
temporary disability compensation but declined to award claimant
permanent partial disability benefits.  Claimant requested board
review of that decision.
Before the board, claimant argued that SAIF should have
granted him an award of permanent partial disability benefits. 
The board, however, affirmed SAIF's notice of closure, holding
that claimant was not entitled to a permanent partial disability
award.  Claimant sought judicial review.  Respondents moved to
dismiss claimant's petition for judicial review, arguing that the
Court of Appeals lacked statutory authority to consider
claimant's petition.  The Court of Appeals denied the motion, and
then affirmed the board's decision on the merits in a brief per
curiam order.  Dougan v. SAIF Corp., 193 Or App 767, 91 P3d 781
(2004).  Claimant filed a petition for review, which this court
allowed.
As noted, the board took action here under its
authority to reopen closed claims on its own motion.  The board's
own-motion authority represents the third phase of indemnity that
the workers compensation scheme offers injured workers.  The
first phase begins when the worker is injured and initiates a
claim.  See ORS 656.262-656.270 (describing procedures for
asserting claims for compensation for workplace injuries and for
closure of claims).  The second phase is the aggravation period,
during which the worker may seek additional benefits for
"worsening conditions" resulting from the original injury during
a five-year period after the injury.  See ORS 656.273 (describing
aggravation benefits and providing that claim for aggravation
must be filed within five years).  The third phase is known as
own-motion authority, pursuant to which the board may reconsider
and adjust an earlier award, even after the five-year aggravation
period has ended.  Under ORS 656.278(1), the board "may, upon its
own motion, from time to time modify, change or terminate former
findings, orders or awards" if it determines that such action is
"justified" because, among other reasons, "[t]here is a worsening
of a compensable injury * * *."  Here, the board concluded that,
although ORS 656.278 authorizes temporary disability compensation
for a worsening injury, that statute does not authorize permanent
partial disability benefits for a worsening injury, such as the
one that claimant suffered in this case.
The legislature, in creating the board's own-motion
authority, limited appellate review of board orders issued under
that authority:

"The claimant has no right to appeal any order or
award made by the board on its own motion, except when
the order diminishes or terminates a former award.  The
employer may appeal from an order which increases the
award."

ORS 656.278(4).  That is, the statute forecloses a claimant from
obtaining appellate review of any order made by the board under
its own-motion authority, but it provides an exception to that
bar if the order "diminishes or terminates a former award." 
Here, claimant challenged a board order that affirmed SAIF's
notice of closure.  SAIF's notice of closure included an award of
temporary disability compensation and a denial of permanent
partial disability benefits.  The board's order neither
"diminishe[d]" nor "terminate[d]" claimant's former award. 
Because the board's order does not come within the exception
described in ORS 656.278(4), "claimant has no right to appeal." 
The Court of Appeals, therefore, lacked jurisdiction to consider
claimant's appeal, as does this court.
Claimant argues that the legislature cannot exempt a
board decision from judicial review.  Claimant, however, fails to
identify a plausible foundation for that argument.  The
legislature created the workers compensation system, and the
legislature has determined by statute which board orders are
subject to judicial review and which are not.  ORS 656.298
generally provides that a party "affected by" a board order may
request judicial review by the Court of Appeals, but, as to
orders issued under the board's own-motion authority, the right
to appeal is controlled by the particular provision of ORS
656.278(4) that is quoted above.  See ORS 174.020(2) (when a
general and a particular provision of a statute are inconsistent,
particular is "paramount" to general, "so that a particular
intent controls a general intent that is inconsistent with the
particular intent").  
Claimant asserts that the board's order involved the
interpretation and application of a statute, ORS 656.278, and
that the board must exercise its authority under that statute
"within the bounds of the law."  Plainly, the board must act "within the bounds of the  law." (1)  That does not mean,
however, that a claimant dissatisfied with a board order has a
right to appeal that order to the Court of Appeals.  The right to
appeal is wholly statutory and is subject to any limitations
imposed by the statute conferring the right.  State v. Snyder,
337 Or 410, 416, 97 P3d 1181 (2004).  Because no statute
authorizes claimant to appeal from the order at issue here --
and, indeed, ORS 656.278(4) expressly forecloses this appeal --
claimant had no right to appeal to the Court of Appeals, and
neither that court nor this court has jurisdiction to review the
board's order. (2)  Accordingly, we have no choice but to
vacate the decision of the Court of Appeals and dismiss the
petition for judicial review.
The decision of the Court of Appeals is vacated, and
the petition for judicial review is dismissed.


1. We acknowledge the significant disputed issue of statutory interpretation that claimant
seeks to raise.  The board held that claimant could not recover permanent partial disability
benefits under ORS 656.278(2)(d) when his claim was reopened under the board's own-motion
authority because of claimant's worsening condition.  Two members dissented.  Jimmy O.
Dougan, 54 Van Natta 1213, 1226, aff'd on recons, 54 Van Natta 1552 (2002).  As noted, the
Court of Appeals affirmed the board's decision on the merits, citing its earlier decision, Goddard
v. Liberty Northwest Ins. Corp., 193 Or App 238, 89 P3d 1215 (2004), in which it agreed with
the board's interpretation of ORS 656.278.
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2. We express no view as to whether avenues other than appeal (for example, a declaratory
judgment proceeding under ORS 28.020 or a petition for a writ of mandamus under ORS 34.110)
might be available to a claimant in this or another case to determine whether the board properly
interprets and applies the authority that ORS 656.278 grants.  Moreover, because claimant's
arguments here are exclusively statutory, we do not address either the constitutional
permissibility of leaving a dispositive statutory ruling by an agency unreviewable or the more
general issue of the legislature's authority to bar judicial review of constitutional challenges to
government action. 
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