concurring.
I write separately to concur because the majority unnecessarily reaches an issue of statutory construction that is inconsistent with our holding in Corona v. Pacific Resource Recycling, 125 Or App 47, 865 P2d 407 (1993), and OAR 436-060-0155(6). This case should be resolved on narrower grounds that are consistent with Corona.
In adopting ORS 656.262(11)(a), did the legislature intend that proceedings that were initially properly before *308the Hearings Division be dismissed if, at some point thereafter, the imposition of penalties under ORS 656.262(11)(a) becomes the only remaining issue? 180 Or App at 300.
ORS 656.262(ll)(a) provides, in part:
“If the insurer or self-insured employer unreasonably delays or unreasonably refuses to pay compensation, or unreasonably delays acceptance or denial of a claim, the insurer or self-insured employer shall be liable for an additional amount up to 25 percent of the amounts then due. Notwithstanding any other provision of this chapter, the director shall have exclusive jurisdiction over proceedings regarding solely the assessment and payment of the additional amount described in this subsection.” (Emphasis added.)
This statute refers to “proceedings” in a manner that is inclusive of both the Hearings Division and the director. Hence, the phrase “proceedings regarding solely the assessment and payment of [penalties],” applies to the director as well as the Hearings Division and any proceeding regarding only the issue of a penalty. While I agree with the majority’s framing of the issue, there is necessarily a flip side: In adopting ORS 656.262(ll)(a), did the legislature intend that proceedings that were initially properly before the director (i.e., a dispute solely involving issue of penalties) be dismissed if, at some point thereafter, compensation becomes an issue before the Hearings Division?
The majority holds that jurisdiction permanently vests at the time a request for hearing is made, regardless of whether circumstances change prior to the commencement of the hearing or the closing of the record. My position is that, for jurisdiction to become permanent, compensability must be at issue when the hearing commences and when it ends with the close of the record.
Putting aside for a moment the merits of the majority’s PGE v. Bureau of Labor and Industries, 317 Or 606, 859 P2d 1143 (1993), analysis of the term “proceedings” in ORS 656.262(11)(a), we are not, as the majority claims, “squarely faced” with this question of statutory construction. In Corona, the claimant raised issues of compensability, attorney fees, and penalties in his request for hearing. Before the *309hearing commenced, the employer paid the requested benefits. We affirmed the Board’s dismissal of the claimant’s request for hearing and held that exclusive jurisdiction was with the director because assessment of penalties was the sole issue.1 125 Or App at 50. The majority acknowledges that Corona depended on the premise that jurisdiction can be lost after the request for hearing is filed but before the hearing commences. Nonetheless, the majority finds that Corona did not examine the correctness of that premise or consider the meaning of “proceedings” under the PGE framework, and therefore “we are now squarely faced with the question of statutory construction that we did not consider in Corona” 180 Or App at 307.
We do not have to construe ORS 656.262(11)(a) because the same result is obtained under Corona as under the majority’s interpretation. Compensability was at issue when the hearing convened in June 1999 and was still at issue when the hearing was continued to October 1999. Between June and October, the parties orally agreed to enter into a stipulated settlement. However, the stipulation was not approved by the administrative law judge (ALJ) until after the October hearing had adjourned and the record was closed. A stipulated settlement must be approved in writing by an ALJ before it has any binding effect. See OAR 438-009-0001(3).2 Additionally, the stipulation and order did not become part of the record because it was signed by the ALJ in November after the evidentiary record had closed in October 1999. See ORS 656.295(5) (“The review by the board shall be based upon the record * * *.”); Arlington Ed. Assn. v. Arlington Sch. Dist. No. 3, 177 Or App 658, 34 P3d 1197, rev *310den 333 Or 399 (2001) (holding that the Employment Relations Board (ERB) erred in taking official notice of a letter not submitted into evidence at hearing but that appeared elsewhere in ERB’s contested case record). Both penalties and, technically, compensability, remained at issue during the continued October 28,1999, hearing and after the record had closed. Because the ALJ had jurisdiction over the compensability issue and the stipulated settlement, he also had jurisdiction to award penalties.3
SAIF incorrectly argues that, when the October hearing commenced, the sole issue was penalties and therefore the ALJ had lost jurisdiction. Claimant, on the other hand, argues that jurisdiction is determined when the request for hearing is made. It does not matter whether we hold that “proceedings” refers to the point at which the request for hearing is made, the proceedings commenced, or the record closed, because compensability was technically still at issue when the record closed after the October 1999 hearing. The facts of this case simply do not present us with a situation where we need to determine the meaning of “proceedings” for purposes of determining jurisdiction under ORS 656.262(11)(a), much less unnecessarily overrule precedent.
That being said, I also take issue with the majority’s statutory interpretation that mischaracterizes legislative *311history and ignores relevant agency interpretation. The majority applies the PGE framework to the term “proceedings” in ORS 656.262(ll)(a) and, after finding the text and context ambiguous, finds its answer in the legislative history. According to the majority, “the legislative history establishes that, once a dispute is properly before the Hearings Division, any subsequent narrowing of the issues to just the penalty issue does not divest the Hearings Division of jurisdiction over the dispute.” 180 Or App at 305. In other words, jurisdiction is permanently frozen as of the time of the request for hearing. The converse of this is that, once a dispute is properly before the director (i.e., a dispute solely involving issue of penalties), any subsequent compensation issues raised before the Hearings Division does not divest the director of jurisdiction over the penalty dispute.
The majority may be correct that “proceedings” refers to the entire course of the workers’ compensation process and that “proceedings” begin with a claimant filing a request. Neither of those holdings answers the question of when the legislature intended jurisdiction to vest for purposes of ORS 656.262(ll)(a). If “proceedings” refers to the entire course of the process, we must determine at what point during that entire course jurisdiction permanently vests: the beginning, the end, or some point in between. The statute is ambiguous on this point, and therefore we must search for the legislature’s intent in the legislative history. PGE, 317 Or at 611-12.
The legislative policy, as demonstrated by the legislative history cited by the majority, is that the legislature “[did not] want the hearings process clogged up with ‘penalty only’ issues.” Tape recording, Interim Special Committee on Workers’ Compensation, SB 1197, May 3,1990, Tape 1, Side B (statement of Cecil Tibbitts) (emphasis added). The committee also made clear that, “if you have another issue that you need to take to hearing and you also have a penalty issue, that would go through the regular process as always.” Id. The majority relies on this statement and cherry picks the ensuing comments by Representative Mannix for proof that the legislature was concerned with the outset of the process, and therefore jurisdiction is determined when the request for hearing is made. 180 Or App at 305. However, read in their *312entire context, the comments concern the merits of a system with bifurcated proceedings, where penalty issues would be handled only by the director. Neither Mannix nor the committee members were deciding the point after which jurisdiction could not be lost. The only interpretation of ORS 656.262(ll)(a) that appears inconsistent with the legislature’s intent not to clog the hearing process with penalty only issues is the majority’s. According to the majority, even if penalties are the only issue at the time the hearing commences, the Hearings Division nonetheless maintains jurisdiction as long as there were other issues at the time of filing.
Another problem with this holding is that it is contrary to OAR 436-060-0155, which was promulgated by the director pursuant to ORS 656.262(11). OAR 436-060-0155(6) provides:
“The Director will only consider a penalty issue where the assessment and payment of additional amounts described in ORS 656.262(11) is the sole issue of any proceeding between the parties. If a proceeding on any other issue is initiated before the Hearings Division of the Workers’ Compensation Board between the same parties prior to the Director issuing an order under this section, and the Director is made aware of the proceeding, jurisdiction over the penalty proceeding before the Director shall immediately rest with the Hearings Division and result in referral of the proceedings to the Hearings Division. If the Director has not been made aware of the proceeding before the Hearings Division and issues a penalty order which becomes final, the penalty of the Director will stand.” (Emphasis added.)
According to OAR 436-060-0155, jurisdiction is not frozen when the request is filed, but rather may change during the proceeding at any time prior to the issuance of an order. To the contrary, the majority holds that exclusive jurisdiction lies with the director if, at the time the request for penalties is made,4 penalties are the sole issue. The director’s interpretation of a rule is entitled to deference if it is not inconsistent *313with legislative policy. Don’t Waste Oregon Com. v. Energy Facility Siting, 320 Or 132, 140-43, 881 P2d 119 (1994).
Because I believe that the majority’s interpretation unnecessarily overrules precedent and is inconsistent with the language of the statute, the statute’s policy as expressed by the legislature, and the director’s proper implementation of that policy, I concur in the result reached by the majority but not in its analysis.
Edmonds and Schuman, JJ., join in this concurrence.That was because the claimant was asserting that the same conduct justified penalties and attorney fees, and therefore the attorney fees would be part of the penalty. See Oliver v. Norstar, Inc., 116 Or App 333, 336, 840 P2d 1382 (1992) (“when the misconduct is such that a penalty may be assessed under ORS 656.262(10), no fees are available under ORS 656.382(1)”).
OAR 438-009-0001(3) provides:
“ ‘Settlement Stipulation’ means a written agreement, or an oral agreement if made on the oral record of a hearing and approved in writing by a[n ALJ], in which any matter contested between the parties, other than matters resolvable in a claim disposition agreement or disputed claim settlement, are resolved by agreement of the parties.” (Emphasis added.)
This case is distinguishable from SAIF v. Shipley, 326 Or 557, 955 P2d 244 (1998), and Roseburg Forest Products v. Langley, 156 Or App 454, 965 P2d 477 (1998). In Shipley, the Supreme Court held that, under ORS 656.704(3) (1997) and ORS 656.245(6) (1997), the Board lost jurisdiction that it may have had to address a claim for medical services in a case where the compensability of an underlying claim was no longer at issue, because at hearing the claimant withdrew it. Because the issue at the time of hearing had been reframed as a claim only for medical services, the AU and the Board had no authority to decide the reasonableness of those medical services under ORS 656.245(6) (1997). In Langley, we held that, because the underlying compensability issue had been decided against the claimant, any remaining medical services claims were to be decided by the director. We stated that “the director had authority to review this claim [for medical services] even though it originally had been raised in conjunction with a claim that came within the Board’s jurisdiction.” 156 Or App at 462. Both Shipley and Langley involved the interpretation of different statutory provisions. Furthermore, this case is factually distinguishable in that here compensability was still technically at issue at the time of the hearing. Rather, this case is more analogous to SAIF v. Pendergast-Long, 155 Or App 633, 637, 964 P2d 1099, adhered to as supplemented 155 Or App 633, 964 P2d 1099 (1998), in which we distinguished Shipley and held that the Board had jurisdiction over a medical services claim because the compensability of the underlying condition was still at issue.
OAR 436-060-0155(2) provides that “[Requests for penalties under this section must be in writing, stating what benefits have been delayed or remain unpaid and mailed or delivered to the Division within 180 days of the alleged violation.”