[498]*498EDMONDS, P. J.
In this workers’ compensation case, employer seeks judicial review of the Workers’ Compensation Board’s order on remand, which held that, because employer had failed to raise an issue on initial board review or judicial review, that issue was not properly before the board on remand. In this judicial review, employer asserts that “[t]he Board abused its discretion by failing to apply its own preservation rule when the Order on Remand imposed an obligation on employer to preserve its argument not only before the hearings division, but also before the Board on initial review” and that the board’s order on remand is not supported by substantial evidence. We affirm.
On approximately December 22, 2001, claimant was working as a cashier in employer’s store when she was injured. She felt “something snap” in her right wrist as she scanned a two liter bottle of soda. She informed a supervisor of her injury, who then entered the following information into an “Employee Incident Report,” a computerized form:
“[Claimant] was scanning a two liter [bottle] of soda when she felt a pop or tear and [a] burning sensation in her wrist and lower forearm. She has swelling and [a] bump that is * * * not normal. It feels like a deep ache. If the pain gets worse then she will seek medical attention. It is the right arm.”
Claimant did not seek medical treatment or make a written claim regarding her injury until February 2003, more than one year after the initial injury. Employer thereafter denied the claim, asserting that claimant had failed to file timely written notice as required by ORS 656.265. Claimant requested a hearing before the hearings division. At the hearing before an administrative law judge (ALJ), employer argued that ORS 656.265 requires (1) that a claimant must provide the employer with written notice of a claim within 90 days after an injury and (2) that the claimant must also file a claim within one year of the injury.1 Employer explained at the hearing,
[499]*499“It’s simply our belief that an employee has two obligations. One is to report an incident, and then secondly, actually to pursue a claim within a year of the incident occurring.
“In other words, to take the situation to a logical extreme, an employee can’t say that an incident happened and then file a claim two, three, four years later. There are some outside time limits, a statute of limitations, if you would, from the date of the injury and the filing of the notice to the actual beginning of the pursuit of the claim.”
The ALJ agreed with employer’s first argument and concluded that claimant had failed to give timely written notice to employer and did not reach employer’s second argument.
Claimant then appealed the ALJ’s decision to the board. At the initial review before the board, employer asserted that ORS 656.265 “requires notice of an injury to be [500]*500given by the worker (or dependent) to the employer within 90 days of an accident, or, under some circumstances, one year.” Other than the quoted sentence, however, employer did not assert its argument made to the ALJ that ORS 656.265 requires a claimant to bring a claim within one year of the injury. The board affirmed the ALJ’s order, stating that “[w]e adhere to our prior decisions that notice of a claim under ORS 656.265 must be in writing and that an oral report of an injury that the employer reduces to writing does not comply with the statute.” Claimant then sought judicial review in this court.
The issue on judicial review was “whether a claimant who orally reported an injury to her employer gave the notice that is required by [ORS 656.265(1)].” Godfrey v. Fred Meyer Stores, 202 Or App 673, 124 P3d 621 (2005), rev den, 340 Or 672 (2006). We concluded that such notice was not required to be in writing and remanded to the board for reconsideration. Id. On remand before the board, employer asserted the argument, last raised before the ALJ, that claimant was required to bring her claim within one year of her injury and that, because she had failed to do so, employer’s denial should be upheld. The board, in response, refused to consider employer’s argument on the ground that the issue framed on remand had not been properly preserved before the board, because the issue had not been raised to the board on initial review or to this court on initial judicial review as an alternative ground for upholding employer’s denial. The board’s ruling, based on lack of preservation, is the subject of the review by this court now.2
We address initially employer’s argument that the board abused its discretion by ruling that employer had not preserved the issue of whether claimant was required to bring her claim within one year of the date of her injury. ORS 656.298(7) governs our standard of review and provides that “[r]eview shall be as provided in ORS 183.482(7) and (8).” [501]*501Because the board purported to exercise its discretion, the applicable standard of review is pursuant to ORS 183.482(8)(b). See SAIF v. Kurcin, 334 Or 399, 405, 50 P3d 1167 (2002) (judicial review of the board’s exercise of discretion occurs under ORS 183.482(8)(b) rather than ORS 183.482(8)(a)). ORS 183.482(8)(b) provides:
“The court shall remand the order to the agency if the court finds the agency’s exercise of discretion to be:
“(A) Outside the range of discretion delegated to the agency by law;
“(B) Inconsistent with an agency rule, an officially stated agency position, or a prior agency practice, if the inconsistency is not explained by the agency; or
“(C) Otherwise in violation of a constitutional or statutory provision.”
Under ORS 183.482(8)(b)(A), we inquire whether the board’s exercise of discretion is outside the range of discretion delegated to the agency by law. We observe that employer does not refer us to any specific statute or rule governing the board’s exercise of authority that it claims the board’s ruling violates.
Free access — add to your briefcase to read the full text and ask questions with AI
[498]*498EDMONDS, P. J.
In this workers’ compensation case, employer seeks judicial review of the Workers’ Compensation Board’s order on remand, which held that, because employer had failed to raise an issue on initial board review or judicial review, that issue was not properly before the board on remand. In this judicial review, employer asserts that “[t]he Board abused its discretion by failing to apply its own preservation rule when the Order on Remand imposed an obligation on employer to preserve its argument not only before the hearings division, but also before the Board on initial review” and that the board’s order on remand is not supported by substantial evidence. We affirm.
On approximately December 22, 2001, claimant was working as a cashier in employer’s store when she was injured. She felt “something snap” in her right wrist as she scanned a two liter bottle of soda. She informed a supervisor of her injury, who then entered the following information into an “Employee Incident Report,” a computerized form:
“[Claimant] was scanning a two liter [bottle] of soda when she felt a pop or tear and [a] burning sensation in her wrist and lower forearm. She has swelling and [a] bump that is * * * not normal. It feels like a deep ache. If the pain gets worse then she will seek medical attention. It is the right arm.”
Claimant did not seek medical treatment or make a written claim regarding her injury until February 2003, more than one year after the initial injury. Employer thereafter denied the claim, asserting that claimant had failed to file timely written notice as required by ORS 656.265. Claimant requested a hearing before the hearings division. At the hearing before an administrative law judge (ALJ), employer argued that ORS 656.265 requires (1) that a claimant must provide the employer with written notice of a claim within 90 days after an injury and (2) that the claimant must also file a claim within one year of the injury.1 Employer explained at the hearing,
[499]*499“It’s simply our belief that an employee has two obligations. One is to report an incident, and then secondly, actually to pursue a claim within a year of the incident occurring.
“In other words, to take the situation to a logical extreme, an employee can’t say that an incident happened and then file a claim two, three, four years later. There are some outside time limits, a statute of limitations, if you would, from the date of the injury and the filing of the notice to the actual beginning of the pursuit of the claim.”
The ALJ agreed with employer’s first argument and concluded that claimant had failed to give timely written notice to employer and did not reach employer’s second argument.
Claimant then appealed the ALJ’s decision to the board. At the initial review before the board, employer asserted that ORS 656.265 “requires notice of an injury to be [500]*500given by the worker (or dependent) to the employer within 90 days of an accident, or, under some circumstances, one year.” Other than the quoted sentence, however, employer did not assert its argument made to the ALJ that ORS 656.265 requires a claimant to bring a claim within one year of the injury. The board affirmed the ALJ’s order, stating that “[w]e adhere to our prior decisions that notice of a claim under ORS 656.265 must be in writing and that an oral report of an injury that the employer reduces to writing does not comply with the statute.” Claimant then sought judicial review in this court.
The issue on judicial review was “whether a claimant who orally reported an injury to her employer gave the notice that is required by [ORS 656.265(1)].” Godfrey v. Fred Meyer Stores, 202 Or App 673, 124 P3d 621 (2005), rev den, 340 Or 672 (2006). We concluded that such notice was not required to be in writing and remanded to the board for reconsideration. Id. On remand before the board, employer asserted the argument, last raised before the ALJ, that claimant was required to bring her claim within one year of her injury and that, because she had failed to do so, employer’s denial should be upheld. The board, in response, refused to consider employer’s argument on the ground that the issue framed on remand had not been properly preserved before the board, because the issue had not been raised to the board on initial review or to this court on initial judicial review as an alternative ground for upholding employer’s denial. The board’s ruling, based on lack of preservation, is the subject of the review by this court now.2
We address initially employer’s argument that the board abused its discretion by ruling that employer had not preserved the issue of whether claimant was required to bring her claim within one year of the date of her injury. ORS 656.298(7) governs our standard of review and provides that “[r]eview shall be as provided in ORS 183.482(7) and (8).” [501]*501Because the board purported to exercise its discretion, the applicable standard of review is pursuant to ORS 183.482(8)(b). See SAIF v. Kurcin, 334 Or 399, 405, 50 P3d 1167 (2002) (judicial review of the board’s exercise of discretion occurs under ORS 183.482(8)(b) rather than ORS 183.482(8)(a)). ORS 183.482(8)(b) provides:
“The court shall remand the order to the agency if the court finds the agency’s exercise of discretion to be:
“(A) Outside the range of discretion delegated to the agency by law;
“(B) Inconsistent with an agency rule, an officially stated agency position, or a prior agency practice, if the inconsistency is not explained by the agency; or
“(C) Otherwise in violation of a constitutional or statutory provision.”
Under ORS 183.482(8)(b)(A), we inquire whether the board’s exercise of discretion is outside the range of discretion delegated to the agency by law. We observe that employer does not refer us to any specific statute or rule governing the board’s exercise of authority that it claims the board’s ruling violates. Indeed, ORS 656.726(5) provides the board with the authority to make rules of practice and procedure in connection with the proceedings before it:
“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 and exercising its authority under ORS 656.278. The board shall adopt standards governing the format and timing of the evidence. The standards shall be uniformly followed by all Administrative Law Judges and practitioners. The rules may provide for informal prehearing conferences in order to expedite claim adjudication, amicably dispose of controversies, if possible, narrow issues and simplify the method of proof at hearings. The rules shall specify who may appear with parties at prehearing conferences and hearings.”
(Emphasis added.) It is apparent, therefore, that the board has plenary authority under ORS 656.726(5) to create and enforce rules regarding preservation. Implicit within that [502]*502grant of authority is the authority to determine what circumstances will suffice to preserve an issue before the board. It follows that the board did not exercise its authority, in this case, outside the range of discretion delegated to it by law. See also Mershown v. Oregonian Publishing, 96 Or App 223, 226, 772 P2d 440, rev den, 308 Or 315 (1989) (holdingthat the legislature has given a broad mandate to the board to prescribe procedural rules for the conduct of hearings).
Because the board’s ruling did not violate any statute or rule, we turn to whether the board’s ruling was inconsistent with ah officially stated position or a prior board practice. Even if such an inconsistency exists, ORS 183.482(8)(b)(B) contemplates that the board’s ruling will be upheld if the reason for the inconsistency is adequately explained. In light of the above principles, employer concludes that “[t]he Board abused its discretion by the unsupported and inconsistent holdingthat employer’s preservation of the timely claim defense at hearing was insufficient.”
In support of its ruling, the board referred to two fundamental considerations derived from our case law decided under ORAP 5.45.3 First, for purposes of judicial economy, preservation policy concerns require that the opportunity be given to a lower tribunal to rectify an error in order to avoid an unnecessary appeal. Raising an issue for the first time in the appellate process provides a disservice to that economy. Second, requiring a party to present its issues at each adjudicative level is essential to a fair process for the other parties and participants. In light of those policies, the board ruled, “the employer did not preserve the claim filing issue by raising it on initial Board review or before the court. Under these particular circumstances, we decline to consider the issue for the first time on remand because it has not been preserved at all appellate levels.” (Emphasis in original; footnotes omitted.) At least one of those policy concerns is at play here: had employer raised its argument that claimant was required to file her claim within a year of the injury to the board on claimant’s initial appeal or to this court on judicial [503]*503review, it is possible that that position would have resulted in an alternative ground for affirming the ALJ’s ruling, resulting in no further need for this court or the board to exercise review.
In response to the board’s reasoning, employer concedes that “[t]he Board is not formally bound by a statute or administrative rule regarding preservation of issues [,]” but contends that “[w]here parties have raised issues at the hearing level, it is well settled that the Board may reach those issues on its de novo review [,]” even if the ALJ has not addressed them. From that premise, employer deduces that it is enough to preserve an issue if the issue is raised before the ALJ. However, employer does not cite any rule, officially stated board position in the board’s case law, or prior board practice that is inconsistent with the board’s holding in this case. Rather, employer makes what appears to be a policy argument regarding what the board’s practice should be.
Moreover, the board’s exercise of its discretion in this case is not without precedent. Specifically, in Judith C. White-Munro, 54 Van Natta 2116, 2120 (2002), the board declined, on remand, to address an argument not preserved on initial board review or assigned as error on judicial review. Employer recognizes the existence of the board’s order in White-Munro but seeks to distinguish it on the basis that, in that case, the issue of compensability was raised, but a discovery issue was not preserved. From those facts, employer posits that “[t]he Board’s own prior decisions reveal that when the Board finds a failure to preserve, it has done so when only one of two distinctly separate issues are raised on review.” (Emphasis in original.) Employer argues, in substance, that the only issue in this case is the compensability of claimant’s injury, an issue that it raised to the ALJ, the board, and this court. Thus, because our case law and the Supreme Court’s case law interpreting ORAP 5.45 distinguish between the raising of an issue and the making of an argument — the former being essential for preservation and the latter not — the same distinction ought to apply to the board’s own preservation rule.4 In employer’s view, making [504]*504such a distinction would result in a conclusion that employer made separate arguments along the way, rather than raised separate issues. Thus, employer asserts, it preserved the issue before the board on remand.
In our view, employer’s arguments ignore the implicit understanding from the standards of judicial review in ORS 183.482(8)(b) that an agency has the authority to establish its own rules regarding preservation and that the parameters of the circumstances suffice to constitute adequate preservation are within the province of the agency creating the standards, so long as those standards do not exceed the grant of authority from the legislature to the agency. See SAIF v. Donahue-Birran, 195 Or App 173, 180-81, 96 P3d 1282 (2004) (holding that a plausible interpretation by the Appellate Review Unit of a rule used to assess work-related impairment was entitled to deference); see also Booth v. Tektronix, 312 Or 463, 473, 823 P2d 402 (1991) (holding that, when the legislature has delegated authority to an agency to define policy by promulgating rules, a court’s review of the board’s exercise of that authority is “largely deferential”).
In light of the broad mandate by the legislature to the board to promulgate its own rules regarding practice and procedure under ORS 656.726(5), we are unable to identify any source of law from which it can be said that the board’s application of its preservation rule required it to distinguish its decision in White-Munro as a matter of law. Moreover, in light of the deference owed to the board in the creation of its own preservation standards, our own decisions and those of the Supreme Court interpreting ORAP 5.45 are of little if any precedential assistance, because those decisions have a source that is distinct from the authority granted to the board under ORS 656.726(5). For all of the above reasons, we conclude that the board did not abuse its discretion in applying its own rule of preservation in the manner that it did.
Employer also asserts that “[t]he Board’s factual finding that employer did not preserve the issue of the timeliness of the claim is not supported by substantial evidence.” However, the fact essential to the board’s exercise of discretion — that employer did not take the position on initial board review or judicial review that claimant was required to file [505]*505her claim within, one year of the injury — is undisputed. Moreover, it was within the board’s discretion to deem employer’s statement before the board that ORS 656.265 requires notice of an injury to be given by the worker to the employer “within 90 days of an accident, or, under some circumstances, one year” to be legally insufficient to notify the board that employer was raising an alternative ground for affirming the ALJ. The board reasonably could have concluded that, in light of the context within which the statement was made, the statement did not adequately apprise the board that employer was relying on alternative grounds for upholding the AL J’s decision.
The dissent disagrees with the above analysis, asserting that “the board abused its discretion in deciding the outcome of the case on the basis of an immaterial principal of preservation of error.” 218 Or App at 512. According to the dissent, the board erred by treating the issue as one of preservation of error by relying on preservation of error decisions from this court and its own decisions when the issue is not properly characterized as an issue about preservation, but, rather, an issue about “when a party has an obligation to appeal to the board from an ALJ order in the party’s favor and when a party must cross-appeal when the ALJ does not decide an issue.” 218 Or App at 511.
The dissent’s disagreement appears to be based on the board’s use of the word “preservation” and its derivatives to characterize the issue that it was deciding when this court’s opinions use the word to refer to different circumstances and rules than the circumstances before the board. The dissent, however, makes an argument for employer that employer does not make. Employer’s assignment of error states,
“The Board abused its discretion by failing to apply its own preservation rule when the Order on Remand imposed an obligation on employer to preserve its argument not only before the hearings division, but also before the Board on initial review.”
In its summary of argument, employer argues, “The Board erred in finding it insufficient that employer raised its specific timely claim argument at hearing, but not at initial [506]*506Board review or before the Court of Appeals. Alternatively, employer preserved the defense of the timeliness of the claim and did not need to detail each argument relevant to that issue.” In its supplemental brief, employer writes, “Based on the Board’s prior decisions and practices, the opportunity to raise and address an issue at hearing is required to preserve said issue. Under this long established principle, employer has sufficiently preserved the issue of timely claim filing in the present case.”
In other words, employer has consistently couched its arguments and the board’s ruling throughout this case in terms of “preservation.” Adopting the parties’ characterization of the issue as one of “preservation,” the board stated in its opinion, “Claimant responds that we should not address this argument because the employer did not preserve it on initial Board review.” Later in its opinion, the board opined,
“However, the employer did not preserve the claim filing issue by raising it on initial Board review or before the court. Under these particular circumstances, we decline to consider the issue for the first time on remand because it has not been preserved at all appellate levels.”
(Emphasis in original.) Eventually, the board concluded, “Although the employer raised a second affirmative defense — timeliness of claim filing under ORS 656.265(4)— in its pleadings (and in closing argument at hearing), it did not preserve the issue on Board review or on judicial review.”
It is correct that the issue ruled on by the board, and characterized by it as a “preservation” issue, is not the same kind of “preservation” issue that arises in this court under ORAP 5.45(1) in our review of decisions of lower courts and tribunals. Although “preservation,” as we understand the meaning of the term for purposes of ORAP 5.45(1), has a different application than the application used by the board in its decision in this case, nonetheless, the board is entitled to characterize its decision in any manner that it desires for purposes of its own jurisprudence, so long as its characterization does not exceed its authority. That is, because the scope of our review under ORS 183.482(8)(b)(A) is limited to reviewing for an abuse of discretion by the agency of its own authority, we have no authority to dictate to the board what [507]*507its rules regarding preservation consist of. As noted above, our case law under ORAP 5.45(1) does not establish the boundaries for the exercise of the board’s authority, only the exercise of our review authority. With that understanding in mind, it makes no difference to the outcome of this case that the board has characterized the exercise of its authority as “preservation” in a manner that does not conform to our notion of “preservation.”
Affirmed.