¶ 11. dissenting. The majority opinion has created an intricate appeal route that requires going to two courts, the superior and Supreme Court, in most cases where the employee wants to exercise the statutory right to trial by jury. Moreover, the Commissioner determines where a party must appeal, and how often; as shown in this case, this power is fundamentally at odds with that of a neutral adjudicator. I do not believe that this appeal regime is commanded by statute, and in a case like this, it is fundamentally unfair to a seventy-one-year-old claimant who may not live long enough to get through the tortuous appeal process to successfully obtain compensation if he ultimately prevails. The appeal route is totally inconsistent with the legislative intent that decisions on compensation be “expeditious.” St. Paul Fire & Marine Ins. Co. v. Surdam, 156 Vt. 585, 589, 595 A.2d 264, 266 (1991). Accordingly, I dissent. I also dissent from the majority’s refusal to exercise its discretion to allow a direct appeal to this Court.
¶ 12. In dissenting, I acknowledge that if this case was not dismissed on jurisdictional grounds, it would have come to this *134Court by some route in any event. Employee presents a novel theory of how an “injury by accident” can occur. Under the majority’s ruling, if the employee had prevailed on the statute-of-repose issue, the case would have needed four different determinations after the initial decision of the Commissioner — the Supreme Court on the statute-of-repose question, the Commissioner for adjudication of whether there was an injury by accident, the superior court on the same question, and the Supreme Court again. In my view, it should have needed only two.
¶ 13. Our statutory scheme creates two alternative appeal routes, depending on whether the losing party is satisfied by the Commissioner’s findings of fact. See Kenney v. Rockingham Sch. Dist., 123 Vt. 344, 348, 190 A.2d 702, 705 (1963). If the losing party is satisfied with the fact-findings, review is by the Supreme Court on the record made before the Commissioner and under a limited standard of review. Cehic v. Mack Molding, Inc., 2006 VT 12, ¶ 6, 179 Vt. 602, 895 A.2d 167 (mem.). The Commissioner’s findings of fact are binding on this Court if supported by the evidence. Id. If the party is not satisfied with the Commissioner’s fact finding, the party may appeal to the superior court for “trial by jury” and review of questions of “fact . . . [and] fact and law.” 21 V.S.A. §§ 670, 671. This factual review is de novo.
¶ 14. Employee in this case wanted two favorable determinations from the Commissioner: (1) that he suffered an injury by accident as a result of the lodging of particulate matter in his lungs, and he was entitled to compensation based on this injury; and (2) that even if he also suffered an occupational disease from the same cause, the occupational disease statute of repose does not apply to the claim for compensation based on the injury by accident. Ruling on a motion for summary judgment filed by the employer’s insurers, the Commissioner decided the second question first and adverse to employee under Sheltra v. Vermont Asbestos Group, 2003 VT 22, ¶ 5, 175 Vt. 499, 820 A.2d 221 (mem.), and Carter v. Fred’s Plumbing & Heating, Inc., 174 Vt. 572, 574, 816 A.2d 490, 493 (2002) (mem.).4 Because of that decision, the Commissioner failed to address the first question and dismissed the claim. Employee appealed to the superior court because, if he was successful in overturning the Commissioner’s summary judgment *135decision on the second question, he wanted a trial by jury on the first question. He also wanted an efficient appeal, occurring in one court and within a reasonable time. Whatever the decision on the merits, employee’s choice of forum was reasonable and consistent with the statute, and should be honored.
¶ 15. Drawing on the Court’s decision in Pitts v. Howe Scale Co., 110 Vt. 27, 1 A.2d 695 (1938), the majority holds that if a claim can be decided solely on a question of law, and the Commissioner has decided to resolve it on that basis, review of the Commissioner’s ruling can occur only in the Supreme Court. The majority’s reasoning is overbroad, not required by Pitts, inconsistent with our decision in Roethke v. Jake’s Original Bar & Grill, 172 Vt. 555, 772 A.2d 492 (2001) (mem.), and creates an inefficient appeal regime. I would follow and extend Roethke to cover this case.
¶ 16. Roethke involved an attempt by a claimant to appeal both a question of fact and a question of law — both arising from the same judgment by the Commissioner — at the same time, by appealing the ruling on the question of law to the Supreme Court and the ruling on the question of fact to the superior court. The legal ruling on the amount of disability benefits the claimant could receive under the statute was wholly or partially unrelated to the factual ruling, which addressed the amount of the claimant’s earnings prior to the injury and the insurer’s responsibility for certain expenses. We held that the claimant could not proceed in that way because the statute governing Supreme Court appeals, 21 V.S.A. § 672, explicitly applies only if the claimant has not appealed to the superior court under § 670. Since the claimant had appealed to the superior court, she was precluded from appealing the same judgment to the Supreme Court. Id. at 557, 772 A.2d at 493.
¶ 17. In the last paragraph of the Roethke decision, we addressed how a claimant could obtain review of a legal ruling. We noted that the claimant had not raised the challenge to the Commissioner’s legal ruling in the superior court appeal. As a result, we held that she had “rendered the commissioner’s judgment on this certified question of law final and controlling in this matter.” Id. The holding was that the claimant could have raised the legal issue in the superior court, and was, therefore, precluded from raising this argument again.
*136¶ 18. The point of Roethke is that a claimant can raise pure legal issues in a superior court appeal as long as the claimant has also raised factual issues. This power is consistent with the statutory requirement that the claimant raise “questions of fact and law.” 21 V.S.A. § 671. As Roethke necessarily holds, the issues of fact and law do not have to be related.
¶ 19. In the most unfortunate part of this Court’s decision, the majority labels the last paragraph of Roethke as “purest dicta,” with the clear indication that it is wrong. Ante, ¶ 9. It is not dicta because the Court was explaining the holding — that the claimant was precluded from raising her legal appeal issue because she failed to raise it in the superior court appeal. If it is wrong, however, that means that the convoluted appeal process the majority has structured can prevent appeal issues from ever being raised. The legal issue cannot be raised in the Supreme Court because of the presence of the superior court appeal as Roethke holds, and it cannot be raised in the superior court because it is a legal issue under the rigid majority decision in this case. Thus, the legal issue is lost. The only way to save it is to forego the fact appeal so that the Supreme Court case can proceed without the superior court review. The majority is taking away an employee’s full right of appeal with no indication that the Legislature intended this drastic consequence.5
¶ 20. I recognize that this case is distinguishable from Roethke because the fact and law issues are related, and the Commissioner resolved the law issue first and did not address the fact issue. This is my point that, under the majority’s reasoning, the Commissioner is determining where the employee can appeal, a power inconsistent with the Commissioner’s proper role. If the Commissioner had decided the issues in the way that employee presented them, she would have made a factual determination that could be appealed under Roethke, along with the legal ruling on the statute of limitations. Similarly, if she had denied the motion for summary judgment on the merits, there would be no “award” *137that could be appealed here, and review would have to occur in the superior court after the Commissioner decided whether there was an injury by accident on the facts presented. In my view, the employee and not the Commissioner should determine where an appeal should proceed.
¶ 21. I note that the procedural posture of this case is identical to that in Letourneau v. A.N. Deringer/Wausau Insurance Co., 2008 VT 106, 184 Vt. 422, 966 A.2d 133. In that case, the Commissioner decided what she understood to be a pure question of law adversely to the claimant, and the claimant appealed to the superior court alleging facts that would have made a difference under the claimant’s view of the law. The superior court decided “that the case presented only a question of law,” id. ¶ 5, and ruled for the claimant as a matter of law. We reversed, noting that the issue was a pure question of law, and holding that both the Commissioner and the superior court fundamentally misunderstood the applicable statute.6 Id. ¶ 15.
¶22. The Commissioner’s action in this case underlies the second point of dissent — that we should allow the late appeal to the Supreme Court so that employee is not without access to a court because of a mistake in choice of forum. As the majority acknowledges, ante, ¶ 10, we have the discretion to take this appeal by virtue of 21 V.S.A. § 673. See Lorrain v. Lorrain Carpets, 167 Vt. 574, 575, 705 A.2d 536, 537 (1997) (mem.). Although the majority has responded to part of the dissent on this issue, it has given no reason for its failure to exercise this discretion to give employee an appeal.
¶ 23. Here, employee committed to an appeal to the superior court believing that the appeal was controlled by facts — that is, the cause and nature of his disability. In doing so, employee was following the direction of the last paragraph of Roethke, a paragraph the majority now calls dicta. Employee was following the path of others, as shown by Letoumeau, decided right around the same time as the trial court decision in this case. The Commissioner certified the questions quoted in the majority decision, ignoring employee’s specification of the issues, and presenting pure questions of law in order to obtain the majority *138result.7 Failing to respond to employee’s need for an expeditious decision, the Commissioner inexcusably failed to certify any questions for five months after the appeal was taken. There is no apparent prejudice to the appellee insurance companies if we take this appeal. The only prejudice is to employee from the Commissioner’s failure to act.
¶ 24. Under 21 V.S.A. § 672, “the time for filing in superior court must expire before the cause may go to this Court.” Peabody, 170 Vt. at 638, 751 A.2d at 786. The time has effectively expired by this Court’s decision, and employee should now be able to obtain review in this Court.
¶25. I would reverse the superior court decision and allow employee to proceed in that court. Faffing that, I would allow him to proceed here. The majority’s technical application of the appeal statutes, and failure to exercise its discretion to allow consideration of the appeal on the merits, creates an injustice. This is as far as it can be from the command of the governing statute that “[a]ll process and procedure . . . shall be as summary and simple as reasonably may be.” 21 V.S.A. § 602.
It would be fairer to say that the Commissioner failed to acknowledge employee’s argument and failed to address it.
Although the majority has stated so in tentative terms, it has suggested that the Commissioner can control what is raised on appeal, even against the will of the appellant. Ante, ¶ 10 n.3. If that is true, the appeal right is illusory, to be defeated by the Commissioner for any reason, or for none. The majority correctly reads that I do not acknowledge that “the Legislature may have intended to vest such control in the Commissioner.” Id. Indeed, I believe that we should state clearly that the Legislature did not intend to vest such control in the Commissioner.
It is also fair to say that we took considerable latitude in construing the Commissioner’s certified question, which was based on her fundamental misunderstanding of the statute.
Although we have held that questions of jurisdiction are before the reviewing court whether or not contained in the Commissioner’s certified questions, the Commissioner certified the jurisdiction issue in this case. Peabody v. Home Ins. Co., 170 Vt. 635, 637, 751 A.2d 783, 785 (2000) (mem.). The inclusion of this question was clearly intended to ensure that the superior court addressed the appellate jurisdiction question. Although the majority criticizes my view of the motive of the Commissioner, it acknowledges that the certified question was “clearly improper.” Ante, ¶ 7.