concurring.
I do not agree with the majority’s interpretation of ORS 656.327(2). The majority believes that our review is not predicated on a contested case order. It says, “There is nothing in the language of the statute that limits our direct review of the Director’s order only to cases where there has been a contested case hearing.” 147 Or App at 250. A reading of the statute on its face demonstrates that the majority is wrong. The language of the statute establishes procedures in a chronological order1 for deciding the appropriateness of *253medical services and directs the Director to hold a contested case hearing procedure when any party is dissatisfied with the initial order. Judicial review of the “director’s order” in the statute means review of the order of the Director that results from the contested case hearing.
Nonetheless, the majority arrives at the correct result. In my view, our decision in Barr v. Fairview Training Center, 139 Or App 196, 911 P2d 1232, rev den 323 Or 690 (1996), was prompted by judicial economy. Because what was involved in that case was a question of law that had already been decided by the Director under language that remained unchanged in the amended statute, it served no purpose to remand the case for a contested case hearing. In this case, the question is a factual one: whether surgery on claimant’s spine is reasonable and necessary. Reluctantly, I agree with the majority that ORS 656.327(2) as amended in 1995 requires us to remand this case. My reluctance is expressed more fully by the following discussion.
Under the Oregon Constitution, the legislature and the judiciary are equal branches of government. It is the function of the legislature to legislate and the function of the courts to adjudicate. Part of the judicial function of this court is to review adjudications by administrative tribunals that involve interpretations of statutes enacted by the legislature. The guiding light before us in that particular task is to effectuate the over-all purpose of the applicable law. This part of my opinion is about the conflict that the legislature has created between the mandate of carrying out the purposes of the workers’ compensation law for the benefit of employers and workers alike and its direction to apply its amendments retroactively to cases that have been adjudicated previously. It is also about legislative encroachment on the function of judicial review of administratively-made decisions through the vehicle of retroactive legislation.
In the area of workers’ compensation law, the legislature has promulgated an administrative process that both legislates and adjudicates. The result is a blend that reflects the ebb and flow of the political process. However, the legislature’s actions also affect human beings with significant needs, and if remedies and the finality of adjudication are at *254the temporal whim of the prevailing view in the legislature, the integrity of the system suffers as well as those involved in it. At the core of any well-conceived legislation is the need to provide substantive law and procedures that produce certainty and finality, i.e., factual determinations on which litigants can rely.
On the other hand, judicial review of workers’ compensation cases is intended to be a mechanism that affords review of administrative decisions, even though the scope of review is often misunderstood by those involved in the system. Judicial review does not exist to correct the mistakes of the legislature or to relitigate the facts of each claim. For us to assume those functions would be to violate the principle that we and the legislature and its agencies are coequal branches of government. Rather, judicial review endeavors to ascertain whether a particular application of the administrative process has complied with the applicable law. The majority has carried out that task correctly in this case by its decision to remand the case to the Director, but the parties must feel that they are encased in a washing machine in an unending spin cycle because of the continuous changes to the law made by the legislature and its direction that its amendments be applied retroactively. The facts of this case illustrate my point.
The issue to be resolved in this case should have been a simple question of fact that was subject to judicial review for substantial evidence. In 1992, claimant’s physician proposed that claimant undergo surgery. This litigation started out before the Director of the Department of Consumer and Business Services, who disapproved the request for proposed surgery. Resolution of the issue required choosing between conflicting medical opinions to determine whether the proposed surgery was reasonably and medically necessary. No physician doubts that claimant experiences pain. The medical issue was whether the proposed surgery would be effective in relieving claimant’s ongoing pain and whether it would endanger other segments of claimant’s spine. It is now 1997 and the parties still do not have a final answer, due in part to the legislature’s choice to make its *2551995 amendments retroactive and applicable to cases pending on review. As discussed below, the legislature has effectively undone lawfully authorized factual determinations by the administrative law judge (AU) and the Board by its amendments.
When claimant appealed the Director’s decision to the Hearings Division of the Board, the AU and the Board found for claimant. Under our holding in Jefferson v. Sam’s Cafe, 123 Or App 464, 861 P2d 359 (1993), rev den 320 Or 453 (1994), they had jurisdiction to make those rulings. In that case, we held that, pursuant to former ORS 656.327(1), the legislature had given the Board jurisdiction over disputes about proposed medical services. After the Board rendered its decision in this case, employer sought review in this court. While review was pending, the legislature enacted Oregon Laws 1995, chapter 332, section 41, to provide for exclusive administrative review by the Director. The effect of that enactment changed the entire focus of this case from a dispute about medical services, which had already gone on too long, to a dispute over jurisdiction. It placed the subject of disputes over proposed medical services solely within the jurisdiction of the Director and required that its provisions, including administrative review through a contested case proceeding, be applied retroactively.
When the Board decided this case, it had jurisdiction, for all legal intents and purposes, and the case was ripe for judicial review. It was after the case left the Board’s jurisdiction that the legislature changed the law. See Volk v. America West Airlines, 135 Or App 565, 899 P2d 746 (1995), rev den 322 Or 645 (1996) (explaining the legislature’s intent to have chapter 332 applied retroactively). Chapter 332, applied retroactively, materially changed the goal posts and the playing field for the parties and encroached on the concept of judicial review. Under the former law, the Board’s decision finding that the surgery was medically reasonable and necessary would have been reviewed by this court for substantial evidence. When the matter is submitted to the Director for a contested case hearing under the new law, the Director’s order disapproving the treatment will be reviewed for substantial evidence under ORS 656.327(2). Now, claimant is required to repeat the administrative review process *256with the “deck stacked against him,” because he must demonstrate that there is not substantial evidence that the proposed surgery is not reasonable and necessary.
A process intended to provide for an expeditious, final determination of disputes has gone awry. It is no wonder that some who are involved in the workers’ compensation system view it as an obstacle course designed to frustrate, rather than promote, rational claims resolution. In a culture where public mistrust of government is rampant, it behooves all of us to be mindful of that perception.
It is with these misgivings that I concur.
Leeson, J., joins in this concurrence.
The statute first provides for the Director to issue an order after a determination has been made. The statute then provides:
“If the worker, insurer, self-insured employer or medical service provider is dissatisfied with that order, the dissatisfied party may request a contested case hearing before the director pursuant to ORS 183.310 to 183.550. At the contested case hearing, the administrative order may be modified only if it is not supported by substantial evidence in the record or if it reflects an error of law. No new medical evidence or issues shall be admitted. If the director issues an order declaring medical treatment to be not compensable, the worker is not obligated to pay for such treatment. Review of the director’s order shall be by the Court of Appeals pursuant to ORS 183.310 to 183.550.” (Emphasis supplied.)