dissenting.
Because I believe that the majority’s holding is inconsistent with the applicable statutes and with our case law, I dissent.
During her cohabitation with Frymire, claimant was married to Marshall. That marriage was dissolved after Frymire’s death, on January 3, 1987, and claimant then changed her name from Nevay McManus to Nevay K. Frymire.
In December 1986, insurer began paying spousal and dependent death benefits pursuant to ORS 656.2041 to claimant and her daughter. Between January 14, 1987, and *427April 2, 1987, insurer noted on three separate forms, including the Forms 801, 1502 and 1503, that the claim was “accepted.” The Form 801 is the claim form completed by employer on December 11,1986. It identifies Frymire as an employee who was fatally injured in the course of his employment. The form contains a check-the-box notation indicating that the claim is “accepted.” The Form 1502 is the insurer’s report to the Department of Consumer and Business Services concerning the status of the claim. The parties have stipulated that a Form 1502, filed in January 1987, placed a claim for death benefits in “deferred” status and that there was never an express acceptance of a claim for death benefits. A second Form 1502 was filed with the Department on February 23, 1987, indicating by check-the-box notations that the claim of “Kenneth D. Frymire” is “accepted” and that no temporary compensation is due. In the “explanation” portion of the form, insurer typed:
“cc: Kenneth D. Frymire
“Widow and dependent benefits being paid.
“Claim originally deferred, now accepted.”
The Form 1503, the determination request, filed with the Department on April 2, 1987, indicates by check-the-box notation that the claim is “accepted,” with payment of medical benefits totaling $3,454. The determination order of April 13,1987, stated:
“The Department is advised that Kenneth D. Frymire was fatally injured while covered under the Oregon Workers’ Compensation Law. The Department orders the insurer to pay, to the beneficiaries, benefits for fatal injury.”
Insurer did not appeal that determination order and paid death benefits to claimant, including spousal benefits and dependent benefits, until February 1996, when it issued the partial denial involved here, on the ground that claimant was not entitled to further spousal death benefits because she was married to Marshall at the time of Frymire’s death. The denial stated that insurer would continue to pay dependent death benefits to Frymire’s children.
An administrative law judge (ALJ) held that, although claimant was not a person entitled to benefits *428under ORS 656.204 or ORS 656.226,2 through its conduct in paying benefits and issuing forms with the notation “accepted,” insurer had accepted the claim for spousal death benefits and was therefore precluded from denying those benefits. The Board rejected the ALJ’s finding that insurer’s conduct was an acceptance of a claim for spousal death benefits. In the first place, the Board reasoned, the payment of benefits in and of itself does not constitute acceptance of a claim for spousal benefits. ORS 656.262(10). Additionally, it found, the notations of acceptance on the Forms 801, 1502 and 1503 do not demonstrate specific acceptance of a claim for spousal death benefits.
The Board’s findings are supported by substantial evidence and are also correct as a matter of law. The Form 801 does not indicate acceptance of a claim for spousal death benefits. The Forms 1502 and 1503 report the status of the claim to the Department and cannot be treated as notification to claimant that the claim is accepted. EBI Ins. Co. v. CNA Insurance, 95 Or App 448, 769 P2d 789 (1989).
The Board held, nonetheless, that because insurer did not appeal from the 1987 determination order, which it said had “specifically directed the insurer to pay spousal benefits” to claimant, it was precluded, under the rule stated in Messmer v. Deluxe Cabinet Works, 130 Or App 254, 881 P2d 180, rev den 320 Or 507 (1995), from denying the claim. In that case, we held that, when a determination order includes an award for a condition that has not been accepted, and the insurer fails to request a hearing on the determination order, the insurer’s failure to challenge the determination order on the ground that it includes an award for a noncompensable condition precludes the insurer from contending later that the condition is not part of the compensable claim. Id. at 258.3
*429Here, the majority holds that the determination order must be understood to award spousal benefits. With that conclusion I disagree. Contrary to the Board’s findings, the determination order did not direct insurer to pay spousal death benefits. It merely ordered that insurer pay benefits to Frymire’s beneficiaries. ORS 656.005(2) defines “beneficiary” as “an injured worker, and the husband, wife, child or dependent of a worker, who is entitled to receive payment under [chapter 656].” (Emphasis supplied.) The order did not specify which persons were beneficiaries entitled to compensation and accordingly did not determine that claimant was a beneficiary entitled to receive spousal death benefits under ORS chapter 656. Because claimant was married to Marshall at the time of Frymire’s death, she was not a beneficiary under ORS 656.204 or ORS 656.226.
The Form 1502, on which the majority relies to bolster its conclusion, was merely a status report to the Department and not related to the determinational order. As we have said, it cannot form the basis for an acceptance. EBI Ins. Co. Not even the Board relied on the Form 1502 in support of its finding that the determination order made an award of spousal benefits. It looked merely to the language of the order itself, which, as we have noted, was not specific as to the type of death benefits that were to be paid.
The determination order cannot reasonably be understood to award spousal death benefits. Accordingly, I would hold that insurer’s failure to appeal from the determination order awarding death benefits to Frymire’s “beneficiaries” does not preclude its present denial of a claim for spousal death benefits. I would hold that the Board therefore erred in affirming the ALJ’s order setting aside insurer’s denial of spousal or cohabitant death benefits, and accordingly I dissent.
Warren and Leeson, JJ., join in this dissent.ORS 656.204 provides, in part:
“If death results from the accidental injury, payments shall be made as follows:
“(1) The cost of burial, including transportation of the body, shall be paid, not to exceed 10 times the average weekly wage in any case.
“(2)(a) If the worker is survived by a spouse, monthly benefits shall be paid in an amount equal of 4.35 times 66-2/3 percent of the average weekly wage to the surviving spouse until remarriage. The payment shall cease at the end of the month in which the remarriage occurs.
“(b) If the worker is survived by a spouse, monthly benefits also shall be paid in the amount equal to 4.35 times 10 percent of the average weekly wage for each child of the deceased until such child becomes 18 years of age.” (Emphasis supplied.)
ORS 656.226 provides:
“In case an unmarried man and an unmarried woman have cohabited in this state as husband and wife for over one year prior to the date of an accidental injury received by one or the other as a subject worker, and children are living as a result of that relation, the surviving cohabitant and the children are entitled to compensation under this chapter the same as if the man and woman had been legally married.”
I agree with the majority’s holding with regard to the effect of 1997 legislative changes to ORS 656.262(10).