dissenting.
At the heart of the disagreement between the majority and myself is the issue of whether claimant subsequently can recover permanent partial disability (PPD) at a rate that was not in effect at the time that the order on the extent of PPD became final. Because I believe that the majority’s analysis is contrary to the principles of issue preclusion and what the legislature intended when it amended the Workers’ Compensation Law in 1995,1 dissent.
The Board awarded 78 degrees for 52 percent PPD to claimant in 1994 in WCB case No. 90-13984, after we remanded for reconsideration of the extent of her disability. Koitzsch v. Liberty Northwest Ins. Corp., 125 Or App 666, 866 P2d 514 (1994). Claimant did not seek review of the Board’s ruling. Accordingly, employer’s insurer paid the PPD award in a lump sum at the rate of $145 per degree of impairment, the statutory rate in effect at the time, on November 18, 1994. See ORS 656.202(2) (providing that awards be paid “in the amounts provided for, by the law in force at the time the injury giving rise to the right to compensation occurred”); ORS 656.214(2) (1987) (establishing the rate of compensation at that time).
In addition to awarding PPD to claimant in 1994, the Board also awarded a to-be-paid out-of-compensation attorney fee to claimant’s attorney and for the first time, an attorney fee to be paid directly by the insurer to claimant’s attorney. Employer sought review only as to the order that it pay an attorney fee directly to claimant’s attorney. On review, we held that the Board had exceeded its authority and remanded to the Board for reconsideration in July 1995. *504Liberty Northwest Ins. Corp. v. Koitzsch, 135 Or App 524, 899 P2d 724 (1995). On remand, claimant sought an award for the first time from the Board of an additional amount of money for her PPD at the rate of $347 per degree for the impairment that had been adjudicated in 1994. She did not contend that her disability had increased; rather, she argued that she was entitled to additional compensation for the prior award because the 1995 legislature had increased the rate of PPD while review was pending on employer’s appeal. The Board rejected claimant’s request, reasoning that any ruling on an increased rate of PPD would be premature.1 The Board issued its order on remand on November 15,1995. That order does not make an award of PPD or mention the 1994 order. It vacates the portion of the previous order that granted a carrier-paid attorney fee and declines to rule on claimant’s request that the prior award of PPD be paid at the higher rate. Neither party sought review of the November 15,1995, order.
In February 1996, claimant filed a new request for hearing with the Hearings Division, claiming that the previously awarded PPD had not been paid at the proper rate. That request was designated as WCB case No. 96-01318, which is the case presently before us. Before the administrative law judge (ALJ), claimant stipulated that the November 15, 1995, order in WCB case No. 90-13984 was final. However, she asserted that she was entitled to additional monies for her impairment as a result of the retroactivity provisions of the 1995 amendments that had increased the rate of compensation for PPD. Employer pointed out that it had paid the PPD awarded in 1994 at the rate then in effect and before the *505effective date of the amendments. Nevertheless, the ALJ reasoned that because ORS 656.2142 provided for the payment of PPD at the rate of $347 per degree at a time when WCB case No. 90-13984 was still pending, claimant was entitled to the increased rate. Employer appealed to the Board. The Board agreed with the ALJ’s, reasoning:
“Although the insurer’s appeal was limited to the attorney fee issue, the November 10, 1994 order nevertheless was not ‘final’ within the meaning of ORS 656.295(8) and section 66 of the 1995 Act. A Board order is not ‘final’ so long as ‘one of the parties’ timely appeals to the court for judicial review. Thus, the fact that the insurer’s appeal was limited to the attorney fee issue is immaterial to the finality of the Board’s order. Due to the insurer’s appeal of the Board’s order, the order did not become final until after the effective date of the Act.”
Employer seeks review of the Board’s latest order. It argues that the PPD award was made and paid in 1994 at the rate in effect at the time and that the Board’s order is final to that matter. Consequently, it asserts that claimant is precluded from requesting compensation at the higher rate. Claimant argues that she is entitled to the increased rate of PPD under the 1995 amendments because they were in effect at the time that the Board vacated its award for carrier-paid attorney fees in November 1995 and that there was no prior final order on the rate of PPD.
The fact that the unappealed November 1994 order is the last order that awards PPD and the fact that claimant did not seek review of that order or the subsequent November 15, 1995, order which held that her request was premature raises issues regarding issue preclusion. In general, the doctrine of claim and issue preclusion applies to workers’ compensation cases. Drews v. EBI Companies, 310 Or 134, 142, 795 P2d 531 (1990). Issue preclusion precludes future litigation on issues when they have been actually litigated and determined in a setting where the determination is essential *506to a final decision. It applies to issues of fact or law. Id. at 139-40. In workers’ compensation cases, issue preclusion rules apply where they “facilitate prompt, orderly and fair problem resolution.” North Clackamas School Dist. v. White, 305 Or 48, 52, 750 P2d 485, modified 305 Or 468, 752 P2d 1210 (1988). Also, issue preclusion may be rendered inapplicable by legislative enactments. Thus,
“[t]he point at which finality attaches to a statutory administrative proceeding for preclusion purposes will usually be governed by statutory provisions. Indeed, a statutory scheme of remedies may expressly contemplate that successive proceedings may be brought, notwithstanding the finality of the first proceeding. But the statutory scheme will usually spell out the situations where a second proceeding is not precluded by finality of a first proceeding.” Drews, 310 Or at 142-43.
The above-mentioned principles regarding issue preclusion frame our examination of the applicable statutes and inform our analysis in this case. Oregon Laws 1995, chapter 332, section 66(1), provides:
“Notwithstanding any other provision of law, this Act applies to all claims or causes of action existing or arising on or after the effective date of this Act [June 7, 1995], regardless of the date of injury or the date a claim is presented, and this Act is intended to be fully retroactive unless a specific exception is stated in this Act.”
Subsection 5(a) of section 66 provides:
“The amendments to statutes by this Act and new sections added to ORS chapter 656 by this Act do not apply to any matter for which an order or decision has become final on or before the effective date of this Act.” Or Laws 1995, ch 332, § 66(5)(a).
In this case, the Board entered its only order in WCB case No. 90-13984 regarding PPD in 1994, and employer paid that award. Neither party sought review of the 1994 order. Of course, claimant would have had no occasion to seek review of the rate paid because it was paid at the rate then in effect. No statute in effect in 1994 postponed the finality of that order, once the time for review expired under ORS 656.295(8). In the absence of any statute that would have *507postponed the finality of the order on PPD, the doctrine of issue preclusion precludes any subsequent litigation of that issue. North Clackamas School Dist., 305 Or at 52-53. Because the award of PPD and the rate at which it was to be paid were issues actually litigated and determined in a setting where its determination was essential to the final decision reached, claimant is precluded from raising those issues in her 1996 claim.
When claimant requested additional compensation for PPD from the Board on remand in 1995 in WCB case Ño. 90-13984, the Board denied her request, holding that her procedural remedy was under ORS 656.283(1). That statute provides, in pertinent part, that “any party * * * may at any time request a hearing on any matter concerning a claim * * *.”3 (Emphasis supplied.) In other words, the Board did not rule on the entitlement to compensation under the new rate. Rather, it held that as a procedural predicate, she was required to file a new claim for the increased compensation. The Board’s ruling constituted an adjudication on the issue of whether claimant could recover the new rate in WCB case No. 90-13984. The Board’s decision actually determined that issue, and its determination was essential to the final decision reached. Claimant did not seek review of the Board’s order regarding the issue of whether she was required to file a new claim in order to recover the new rate, and it also became final under ORS 656.295(8). Again, the doctrine of issue preclusion precludes her from relitigating that issue in a new claim. Id.
The majority attempts to reason around the doctrine of issue preclusion by utilizing the 1995 amendments to the Workers’ Compensation Law. According to the majority, the “matter” of the rate of payment of PPD in this case was never the subject of a final order or decision until after the new rate became effective in June 1995 under the amendments. Apparently, the majority believes that the Board’s November *50815, 1995, order in WCB case No. 90-13984 has the legal effect of incorporating the 1994 PPD order so that the 1994 order did not become final until after the 1995 amendments became effective. Its analysis has several flaws.
First, the request for additional compensation before us is not under WCB case No. 90-13984. Claimant’s request has the status of a new claim under ORS 656.283. She does not seek review from any order or decision in WCB case No. 90-13984 or the November 15,1995, order, having stipulated to the ALJ that the latter became final. Therefore, it is legally impossible for us to enter an order in that case. Second, the majority does not deal with the legal significance of the failure of claimant to seek review from the 1995 order. Third, the 1995 order does not adjudicate the entitlement to PPD at the new rate except by implication. Rather, it determines that the issue was not legally cognizable in WCB case No. 90-13984, a determination not challenged by claimant. Finally, the majority fails to recognize that by enacting the 1995 amendments, the legislature has expressly provided for claim splitting for purposes of finality and issue preclusion. Rather than enacting a statutory scheme that avoids claim preclusion as discussed in Drews, the 1995 amendments on retroactivity express a legislative intention to statutorily adopt the doctrine of issue preclusion regarding matters in pending claims that have become final before the effective date of the amendments.
Subsection 5(a) provides a specific exception to the general retroactivity of the 1995 amendments to the Workers’ Compensation Law and requires careful scrutiny. Or Laws 1995, ch 332, § 66(5)(a). The legislature did not use the phrase “claim or causes of action” in the exception provision as it did in the general retroactivity provision of the bill. Rather, the exception to retroactivity applies to “any matter for which an order or decision has become final * * (Emphasis supplied.) In context, a “matter” is an issue that arises within a claim. For instance, ORS 656.283(1) provides that a claimant may request a hearing “on any matter concerning a claim, except matters for which a procedure for resolving the dispute is provided in another statute * * The choice of the legislature to use the phrase “matter for *509which an order or decision has become final” in the exception clause rather than the words a “claim” or a “cause of action” used in the general retroactivity clause cannot be ignored. The use of different language can only be indicative of the legislature’s intent to permit the splitting of issues out of claims for purposes of finality of determinations of matters within the same claim.4 Under the exception clause, a determination on a matter within a claim on which review was not sought and which became final before the effective date of the amendments is deemed not subject to the 1995 amendments, including the increased rate of PPD.
Also, the majority’s decision embodies a policy that is contrary to the legislature’s intent to afford finality to adjudications within the workers’ compensation system when not appealed. The decision means that the finality of orders or decisions regarding matters does not occur until there is a final order on the claim. If the majority is correct, that means that the legislature must have contemplated that all aspects of a claim pending on June 7, 1995, are subject to reconsideration under the amended statutes, even if litigation on a matter within a claim was not pending. Accordingly, if that had been the intention of the legislature, it would have used the word “claims” in subsection 5(a) rather than the phrase “any matter for which an order or decision has become final.”
Moreover, the policy ramifications of the majority’s decision conflict with other workers’ compensation statutes and upset the harmony between statutes like ORS 656.313 and ORS 656.298(3)(c). ORS 656.313 stays payment of ordered compensation when appealed. Under the statute, an insurer has a duty to pay the compensation within 30 days of the order, if it does not appeal. In this case, employer paid the PPD ordered in 1994, electing not to exercise its right to appeal. Unless the majority is also willing to hold that employer can now appeal the award of PPD decided in 1994, employer finds itself liable for the difference between $147 *510per degree and $347 per degree four years later, having foregone its appeal rights. Also, ORS 656.298(3) requires a petitioner to specify the issues on review including “[a] brief statement of the relief requested and the reasons the relief should be granted.” The obvious purpose of the statute is to inform the parties about which matters are to be litigated on appeal and by implication, which rulings can be considered final. When read with ORS 656.295(8),5 the statutes express a legislative policy of finality that permits parties to rely on the hearing division’s rulings as final determinations of matters unless an issue is raised at the next level of review. In light of the majority’s analysis, the designation of issues for review no longer has any bearing on the issue of finality.6
Finally, our decision in Volk v. America West Airlines, 135 Or App 565, 899 P2d 746 (1995), rev den 322 Or 645 (1996) does not dictate a contrary result. In that case, the claimant sought review of an order of the Board in which the Board concluded that it lacked authority to order the insurer to pay an attorney fee directly to the claimant’s attorney. We first addressed ORS 656.386(2), which had been amended by chapter 332. We framed the issue as “whether the legislature intended the new law to apply in a case such as this where the Board has taken its final action and the matter has been appealed to, but not finally resolved by, the court.” Volk, 135 Or App at 569. In light of the provisions of ORS 656.295(8), we concluded that “the legislature’s intent in subsection (5)(a) of section 66 was to make the new law applicable to matters for which the time to appeal the Board’s decision had, not expired or, if appealed, had not been finally resolved by the courts.” Id. at 572-73. We did not decide whether the legislature contemplated that a claim could be split so that a *511matter in a claim could become final while review was pending on a different matter in the claim.
In summary, the law of issue preclusion controls the outcome of this case. The decision of the matter of the rate of PPD became final when claimant did not seek review of the Board’s rejection of her request that she be awarded PPD at the higher rate in November 1995. Claimant is now precluded from raising that issue through a new claim made in 1996. Moreover, the payment of PPD in 1994 ended employer’s obligation under ORS 656.214(2) when claimant did not seek review of the order on that matter. Subsection 5(a) is an expression by the legislature regarding the splitting of claims so that matters finally decided within a case are accorded the status of final orders. When applied to this case, it makes the 1994 order awarding PPD at the rate of $147 per degree not subject to the retroactivity provisions of the 1995 amendments. For several reasons, we should reverse the Board’s decision requiring employer to pay additional PPD at the new rate.
I dissent.
The Board said:
“Consequently, we find that at this juncture, any ruling regarding the applicable rate for claimant’s permanent disability benefits would be premature and advisory in nature. See, e.g., David J. Aronson, 47 Van Natta 1948 (October 6, 1995); see also James J. Sheets, 44 Van Natta 400 (1992).”
In Aronson, the claimant also requested the higher rate of PPD in light of the 1995 amendments. The Board reasoned that because the insurer had yet to process its prior order withdrawing an order affirming the ALJ’s order that increased the claimant’s PPD award, any ruling regarding the applicable rate would be premature. It pointed out that if the claimant subsequently disagreed with the insurer’s action, it could seek a hearing under ORS 656.283(1). This case differs in that the insurer had processed and paid claimant’s PPD in 1994.
ORS 656.214(2) provides, in part:
“When permanent partial disability results from an injury, the criteria for the rating of disability shall be the permanent loss of use or function of the injured member due to the industrial injury. The worker shall receive $347.51 for each degree stated against such disability * *
A “ ‘claim’ means a written request for compensation from a subject worker or someone on the worker’s behalf, or any compensable injury of which a subject employer has notice or knowledge.” ORS 656.005(6). “ ‘Compensation’ includes all benefits, including medical services, provided for a compensable injury to subject worker or the worker’s beneficiaries by an insurer or self-insured employer pursuant to this chapter.” ORS 656.005(8).
As the Supreme Court has recognized in a different context, “[A Board] order which addresses two separate aspects of the same claim * * * may finally determine one issue but not the other.” Price v. SAIF, 296 Or 311, 316, 675 P2d 479 (1984). Subsection 5(a) is a reflection of the legislature’s intent to create a similar concept for purposes of the retroactivity of the 1995 amendments.
ORS 656.295(8) provides, in part:
“An order of the board is final unless within 30 days after the date of mailing of copies of such order to the parties, one of the parties appeals to the Court of Appeals for judicial review pursuant to ORS 656.298.”
The need for a policy of finality is illustrated by the facts in this case involving a claim commenced in 1990, PPD compensation ordered and paid in 1994 and a request for increased compensation pending in 1998 (because of the fortuity of the 1995 amendments). On these facts, it is difficult to believe that the legislature would not have intended the 1994 PPD award to be final in light of the language of subsection 5(a).