dissenting.
In this proceeding under ORS 656.283(2), the issue is whether the referee and the Board can base their review decision on factual findings from the hearing record that differ from the factual determinations of the Director. We considered that question in Lasley v. Ontario Rendering, 114 Or App 543, 547, 836 P2d 184 (1992), and held that the referee’s responsibility to find the historical facts is unaffected by the review limitations in ORS 656.283(2):
“Under ORS 656.283(2), the hearing to which a claimant is entitled must be for the purpose of determining the historical facts relevant to the dispute. That responsibility is unaffected by the scope of review limitations in subsections (a) through (d). On the basis of that record, the referee may-make findings of ultimate fact to determine whether the Director’s order is subject to modification for any of the specific reasons in ORS 656.283(2). On review, to determine whether the Director’s ordér is subject to modification, the Board reviews the record made by the referee but may make findings of ultimate fact different from those made by the referee. This court, however, reviews the Board’s decision *136only for errors of law and substantial evidence. ORS 656.298; ORS 183.482.” (Emphasis supplied.)
The majority alters the referee’s role, holding that the referee must defer to implicit or explicit “findings” by the Director.1 Because that misstates the referee’s responsibility and contradicts Lasley, I dissent.
The Director held no hearing and made no evidentiary record. He concluded, on the basis of his informal review, that there was no causal link between claimant’s back injury and the need for vocational assistance and that he had left his job due to psychological stress, not because of an inability to perform. After a hearing, the referee concluded that claimant was eligible for vocational assistance, because he had left his “custodian job on medical advice that work of that type would cause additional low back surgery in the future.” On review, the Board reversed, but misstated the referee’s factfinding responsibility:
“The referee does not determine how the evidence preponderates or even if there is substantial evidence to support the director’s order.”
The Board held that the scope of review limitations in ORS 656.283(2)(a)-(d) restrict the referee’s role as factfinder and require him to defer to the Director’s view of the facts unless it is “clearly against reason and evidence.”
As Lasley demonstrates, that analysis is incorrect. The referee finds the historical facts. Even the majority acknowledges that, according to Lasley, the referee and Board follow their ordinary hearing procedures in hearing the evidence and finding the facts. On the basis of the findings, the referee determines whether the Director’s decision is erroneous under ORS 656.283(2)(a)-(d). The referee does not merely determine, as the Board erroneously held, whether any evidence supports the Director’s decision. As Lasley held, nothing in the statute suggests that the legislature intended *137the statutory review limitations to alter the referee’s responsibility to find the historical facts.
The majority is not correct in suggesting that that reading of Lasley would add “factual error” to the grounds for modification in the statute. The Board and the majority assume that the Director’s decision is based on an administrative hearing that results in findings based on evidence and a decision based on those findings. The assumption is false. The parties’ only opportunity for an administrative hearing is that which occurs before the referee and the Board. The findings from that hearing state the factual context in which the Board reviews the Director’s decision under ORS 656.283(2). The Board has no reason to decide whether the Director made an “error of fact,” because the Board relies solely on its own findings. It does not examine whatever factual assumptions the Director may have made, because they are irrelevant to the Board’s review. Lasley correctly held that the relevant facts are those found by the referee and the Board. The majority ignores Lasley in declaring that the Board is forbidden to determine the facts and rely on its own findings and is compelled to agree with the Director’s factual impressions, even though they may be strongly contradicted by the evidence submitted to the referee.2
The majority’s restriction on Board review creates a serious practical problem that the Legislature clearly did not intend. ORS 656.283 entitles any party to a hearing, including the usual administrative procedures that accompany a hearing, such as findings based on the record and a decision based on findings supported by substantial evidence. Even *138though the Director holds no hearing, receives no evidence, finds no facts or makes incomplete findings and publishes no final order, the majority holds that the parties are confined to the Director’s factual impressions, such as they are, and may not adduce evidence before the referee to establish facts different than those assumed by the Director. That construction effectively eliminates the right to a hearing before the Board. The net result is that, under the majority’s construction, the parties have no right to a true hearing before either the Director or the Board. We cannot ascribe to the legislature an intention to create such an absurd result.
We should adhere to Lasley and remand this proceeding to the Board for reconsideration under a correct interpretation of the law. The referee did not err in finding the historical facts and reviewing the Director’s decision in the light of those findings. Under Lasley, that is precisely the responsibility of the referee and the Board. I cannot concur in the majority’s creation of a convoluted procedural restriction that is unsupported by the statute or common sense.
I dissent.
Riggs and De Muniz, JJ., join in this dissent.The majority incorrectly assumes that the director makes findings of fact to support his proposed resolution. Whether findings accompany the director’s order is fortuitous because, as Lasley v. Ontario Rendering, supra, noted:
“Neither the statute nor the administrative rule requires the Director to hold a hearing, to create a record or to make findings in support of his decision on a vocational assistance matter.” 114 Or App 546.
The Director found no evidence that claimant stopped working because of a worsening of his back condition. However, the referee found:
“The undisputed testimony at the hearing was that claimant left the custodian job on medical advice that work of that type would cause additional low back surgery in the future. The undersigned is not aware of any statute rule or case law that requires claimant to endanger himself in order to satisfy vocational eligibility rules.”
The referee’s finding, if accepted by the Board, would support a conclusion that the Director violated a statute or rule or abused his discretion. ORS 656.283(2)(a), (d). However, the Board erroneously believed that it was obligated to ignore the referee’s finding if “any evidence” in the record supported the Director’s factual determination. This court should instruct the Board that, under the statute and Lasley v. Ontario Rendering, supra, the Board is obligated to review the Director’s decision on the basis of its own findings of historical fact.