concurring in part, dissenting in part.
I agree with the majority’s analysis of the physician-patient privilege in Part A of the opinion. I also agree with the majority that the fact that the statutes and rules do not provide for the physician-patient privilege in workers’ compensation contested cases does not resolve the second question whether ex parte1 communications between claimant’s treating physicians and employer’s lawyer are proper. I disagree, however, with the majority’s conclusion in Part B of the opinion that the workers’ compensation statutes contemplate this type of communication. Therefore, I dissent from Part B of the majority opinion.
On review of the Board’s action, this court is to determine whether the agency has “erroneously interpreted a provision of law and that a correct interpretation compels a *478particular action.” ORS 183.482(8)(a); see ORS 656.298(6) (review by the Court of Appeals as provided in ORS 183.482(8)). The Board, in its opinion in Alan W. Hayes, Jr., 37 Van Natta 1179,1182 (1985), stated:
“We find nothing in the statutes or rules requiring an insurer to give claimant prior notice of its intent to contact his or her physician. Further, we find that such a requirement is inconsistent with our stated policy of full, fair and expeditious disclosure of information between the parties. It is also inconsistent with the legislature’s intent to create a compensation system that reduces litigation and minimizes the adversarial process.”
I agree with the majority that ‘ ‘ [t]he Board is permitted * * * to adopt a general policy interpreting one of its rules that will be applicable to future cases.” 312 Or at 473; see Marbet v. Portland Gen. Elect, 277 Or 447, 461, 561 P2d 154 (1977) (discussing usual authority of administrative agencies to promulgate such rules). But “[a]n administrative agency may not, by its rules, amend, alter, enlarge or limit the terms of a statute.” Cook v. Workers’ Compensation Dept., 306 Or 134, 138, 758 P2d 854 (1988). This court has stated:
“ ‘A statute which creates an administrative agency and invests it with its powers restricts it to the powers granted. The agency has no powers except those mentioned in the statute. It is the statute, not the agency, which directs what shall be done. The statute is not a mere outline of policy which the agency is at liberty to disregard or put into effect accordingto its own ideas of the public welfare.’ ” (Emphasis added.)
U. of O. Co-Oper. v. Dept. of Rev., 273 Or 539, 550, 542 P2d 900 (1975) (quoting Gouge v. David, 185 Or 437, 459, 202 P2d 489 (1949)). Thus, this court must determine whether the Board’s interpretation of its rules in Alan W. Hayes, Jr., supra, is consistent with its statutory authority. The Board discussed its authority for its ruling in Alan W. Hayes, Jr.:
“The Oregon Legislature has declared that it is the policy of the Workers’ Compensation Law ‘to provide a fair and just administrative system * * * that reduces litigation and eliminates the adversary nature of the compensation proceedings, to the greatest extent practicable.’ ORS 656.012(2)(b). Pursuant to this policy, the Board has promulgated rules of *479practice and procedure designed to ‘expedite claim adjudication and amicably dispose of controversies.’ OAR 438-05-035. Among these rules are those pertaining to the generation of documentary evidence.”
37 Van Natta at 1182.
ORS 656.012(2)(b), quoted in Alan W. Hayes, Jr., supra, sets policy but does not give the Board rulemaking authority. OAR 438-05-035 and the other rules mentioned in Alan W. Hayes, Jr.,2 were promulgated under the authority of ORS 656.726(4).3 OAR 438-05-005. ORS 656.726(4) provides:
“The board may make and declare all rules which are reasonably required in the performance of its duties, including but not limited to rules of practice and procedure in connection with hearing and review proceedings * * *.”4
This statute does not specifically grant authority to the Board to authorize ex parte contact with claimant’s treating physicians. Another statute, ORS 656.252, does specifically address contacts with physicians. The critical issue, not addressed by the majority, is whether ORS 656.252 in any way limits the Board’s authority to establish rules governing contacts with treating physicians under ORS 656.726(4). I conclude that it does.
ORS 656.252(1) authorizes rulemaking governing two things: (1) “audits of medical service bills,”5 6and (2) “reports by attending and consulting physicians and other personnel of all medical information relevant to the determination of a claim.” ORS 656.252(l)(a)-(e) specifies certain types of reports which the Board’s rules shall govern. Those statutory provisions are prefaced by the qualifying phrase that ‘ ‘ [s]uch rules shall include, but not necessarily be limited to [items specified in (l)(a)-(e)].” As the majority suggests, *480the Board may make rules other than those described in ORS 656.252(l)(a)-(e). 312 Or at 475.
However, this qualifying phrase does limit the Board’s authority to make rules; the Board is only given authority to make “[s]uch rules” as defined earlier in ORS 656.252(1). That is, the Board may only make rules governing “reports by attending and consulting physicians and other personnel of all medical information relevant to the determination of a claim.” Therefore, the statutory authority to make rules governing these “reports by attending and consulting physicians” not only limits the Board’s rulemaking authority under ORS 656.252, but it also limits the Board’s general rulemaking authority under ORS 656.726(4) and 656.726(3)(a). This is consistent with Cook v. Workers’ Compensation Dept., supra; with U. of O. Co-Oper. v. Dept. of Rev., supra; and with Smith v. Clackamas County, 252 Or 230, 233, 448 P2d 512 (1969), overruled on other grounds, Whipple v. Howser, 291 Or 475, 487 n 6, 632 P2d 782 (1981) (“the inclusion of specific matter tends to imply a legislative intent to exclude related matters not mentioned”).
A number of factors are helpful in determining what the phrase “reports by attending and consulting physicians and other personnel of all medical information relevant to the determination of a claim” means in the context of ORS 656.252. In the abstract, a report can be either written or oral. This court, therefore, looks to the context of the statute, to the purpose of or policy underlying the statute, and to legislative history. Accordingly, I will proceed in that order.
The context of the statute indicates that the word “reports” refers to “written reports.” The reports referred to in ORS 656.252(l)(a)-(c) are described as items which are “submitted” or “made.” ORS 656.254(1)6 provides that the Board “shall establish medical report forms [i.e., written] * * * to be used by * * * physicians.” (Emphasis added.) Further, ORS 656.252(1) provides that the reports are to be submitted to “the injured worker’s representative, the worker’s employer, the employer’s insurer and the department.” (Emphasis added.) By using the conjunctive “and,” *481the legislature has specified that the reports are to be submitted to all of these groups inclusively, not to any one of them separately. The most plausible mechanism by which this can occur is through written reports; verbal reports could only satisfy this requirement if aU parties are represented, as in a deppsition-type setting. The conjunctive construction in ORS 656.252(1) indicates that, whether in verbal or written form, ex parte contact was not authorized. This is the policy underlying the statute.
In addition, ORS 656.252(4) provides immunity from legal liability when a person “reports medical information to a person referred to in subsection (1) of this section, in accordance with department rules.” The only way that a physician can submit a report to “a [singular] person” under ORS 656.252(4) and have it submitted to all four parties in ORS 656.252(1) conjunctively is either for the report to be written so that the exact same report can be distributed to all parties or for all parties to be present if it is to be given verbally.
This reading of the statute is consistent with the policy underlying the statutory framework. The Board supported its determination that ex parte contact with physicians was allowed by quoting the language in ORS 656.012(2)(b) that the policy of the workers’ compensation law is “[t]o provide a fair and just administrative system[7] * * * that reduces litigation and eliminates the adversary nature of the compensation proceedings, to the greatest extent practicable.” Alan W. Hayes, Jr., supra, 37 Van Natta at 1182. The *482Board, quoting OAR 438-05-035, relied on the notion that the system must be expeditious, and went so far to say that not allowing ex parte contact “is inconsistent with [the Board’s] policy of full, fair and expeditious disclosure of information.” Alan W. Hayes, Jr., supra, 37 Van Natta at 1182. However, OAR 438-07-0058 states that “[t]o avoid unnecessary delay and expense medical evidence should be presented in the form of written reports.” Apparently, the Board itself does not consider the use of written reports to be contrary to the legislative policy of expeditious claim adjudication. Neither does the legislature. The purpose of ORS 656.252 is to “insure prompt and correct reporting,” and the specific reports described in that section are, as I have shown, to be issued in written form and to be shared mutually.
Legislative history suggests that the word “reports” in ORS 656.252(1) was used to refer to “written reports.” Reports were discussed as something to be contained in the file. House Bill 1594, as introduced, stated that the reports “shall be on forms established by the board.”9
Even the administrative rule promulgated pursuant to ORS 656.252 expressly defines the term “report” as a written document. Division 10 of OAR 436, promulgated in part pursuant to ORS 656.252, OAR 436-10-001(1), defines “report” as “medical information transmitted in written form containing relevant subjective and objective findings. Reports may take the form of brief or complete narrative reports, a treatment plan, a closing examination report, or any forms as prescribed by the [Board].” OAR 436-10-003(36). It is interesting that this definition is the result of 1990 amendments, adopted after the Board’s decision in Alan W. Hayes, Jr., supra.10 Apparently the Board does not consider the legislature’s description in ORS 656.252 of specific *483methods by which to obtain information from physicians to be a limitation on the Board’s authority to establish rules regarding obtaining information in other ways. I disagree.
ORS 656.252 specifies how the Board is to obtain information from physicians. ORS 656.252(1) limits the Board’s authority to promulgate rules for obtaining information to those methods consistent with ORS 656.252(1), absent a specific statutory authorization providing the authority for other methods. ORS 656.252(1) could reasonably be interpreted to allow either (1) rules regarding only written reports, or (2) rules regarding written reports and verbal reports in the presence of the injured worker’s representative, the worker’s employer, the employer’s insurer, and the department, but not to allow ex parte contact.
I would hold that the Board’s ruling in Alan W. Hayes, Jr., supra, that allows ex parte contact with the physicians as a part of the process of obtaining the reports was an erroneous interpretation of law and, therefore, that reliance on Alan W. Hayes, Jr., supra, for that proposition in the present case also was error.11
Because it is clear from the record that the seven exhibits, which consisted of letters describing claimant’s condition from three of claimant’s treating physicians, resulted from ex parte communications by the employer’s lawyer with these physicians, I would reverse the decision of the Court of Appeals and remand this case to the Board to address, in the *484first instance, the appropriate consequences of the Board’s use of evidence obtained as a result of the improper ex parte contact.
Fadeley, J., joins in this opinion.The term ex parte as used in this opinion means communications with claimant’s treating physicians by the employer or its representatives without the consent of claimant or claimant’s counsel.
The Board mentioned that OAR 438-07-005(2), 438-07-005(6), and 438-07-015(2) and (3) were consistent with its policy and thus with its decision allowing ex parte contact. Alan W. Hayes, Jr., 37 Van Natta 1179,1182 (1985).
At the time OAR 438-05-035 was promulgated, the subsection was ORS 656.726(5), but the wording was identical to current ORS 656.726(4).
The director is also given a general grant of authority to “[m]ake and declare all rules which are reasonably required in the performance of the director’s duties.” ORS 656.726(3)(a).
This phrase was added to the statute in 1987. Or Laws 1987, ch 884, § 3.
ORS 656.254 was enacted as part of the same bill that enacted ORS 656.252. Or Laws 1967, ch 626.
1 need not address whether allowing ex parte contact is consistent with the policy of providing a fair system.
As the majority points out in Part B(l), 312 Or at 472, claimant and amicus Oregon Trial Lawyers Association pointed to many sources recognizing a special relationship between patient and physician outside the context of the physician-patient evidentiary privilege. For recent discussions about the wisdom of allowing ex parte contacts and the treatment of the issue in other jurisdictions, see Annot., Discovery: Right to Ex Parte Interview With Injured Party’s Treating Physician, 50 ALR 4th 714 (1986); Dalgleish, Woytus and Ex Parte Physician Interviews in Missouri, 47 J of Mo Bar 265 (June 1991); Dewey, Jr., and Heine, Survey of Illinois Law - Evidence, 15 So 111 Un L J 997 (1991); Comment, Shielding the Plaintiff and Physician: The Prohibition of Ex Parte Contacts with a Plaintiff’s Treating Physician, 13 Campbell L Rev 233 (1991); Note, Restricting Ex Parte Interviews with Nonparty Treating Physicians: Crist v. Moffatt, 69 NC L Rev 1381 (1991); and Note, Professional Ethics Codes in Court: Redefining the Social Contract Between the Public and the Professions, 25 Ga L Rev 1327 (1991).
OAR 438-07-005 was proposed at the same time as OAR 438-05-035. OAR 438-05-005.
This language was changed to “the director shall establish medical report forms” and was codified in ORS 656.254(1). See note 6, supra. This change in language arguably could support the idea that, because forms shall be established but not that reports “shall be on forms” as originally proposed, reports need not be written. However, this change in language could just as well support the idea that, while forms are provided, if the physician submits a report in letter format but not on a form, it still is considered a report. Legislative history does not indicate the significance of the change.
The former rule, OAR 436-69-005(21), also promulgated in part to carry out *483the provisions of ORS 656.252, former OAR 436-69-004, defined “report” as “transmittal of medical information in a narrative letter, on a form or in progress notes from the worker’s medical file. Reports may be handwritten but all shall be legible and include all relevant or requested information.”
Because I would hold that the Board’s rule allowing ex parte contact was without statutory authority as required for immunity under ORS 656.252(4), it might follow (subject to the issue concerning, inter alia, reasonable reliance) that the rule would not provide the physician immunity for participating in ex parte contact. In the absence of this immunity, Humphers v. First Interstate Bank, 298 Or 706, 696 P2d 527 (1985), recognizes the existence of tort liability for the breach of a confidential relationship. See also ORS 677.190, which provides:
“The Board of Medical Examiners for the State of Oregon may refuse to grant, or may suspend or revoke a license to practice issued under this chapter for any of the following reasons:
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“(5) Willfully or negligently divulging a professional secret.”