dissenting.
The majority concludes that the Workers’ Compensation Board (board) has discretion under its statutory rule-making authority to apply an immaterial preservation of error principle to decide the outcome of this case. I dissent because, in my view, the board should have applied the procedures required by its own statutes and rules to determine if employer waived its affirmative defense. The board’s failure to apply those procedures and its choice to apply an immaterial preservation of error principle was an abuse of discretion under ORS 183.482(8)(b)(A). We should remand once again so that the board can interpret and apply its procedural standards on reviewability that applied at the time of its initial review.
To restate the issue, employer raised two affirmative defenses to the claim for compensation that were based on ORS 656.265 — that claimant failed to file written notice within 90 days after the injury and that claimant failed to bring a claim within one year of the injury. Those defenses were pleaded and argued to the administrative law judge (ALJ). The ALJ agreed with the notice of claim defense and did not rule on the timeliness of claim defense. Claimant appealed the ALJ’s order; employer did not cross-appeal on the ground that the order was correct based on the second affirmative defense. On appeal, the board upheld the denial based on the notice of claim defense and did not address the timeliness of the claim. On further judicial review, this court reversed and remanded, concluding that the notice of claim need not be written.
*508On remand, employer argued that the second affirmative defense was now material and should be determined by the board. The board found, however, that the defense was not preserved. Relying on cases that require presentation of an issue in a lower tribunal in order to allow consideration by a reviewing authority, the board determined that the second affirmative defense was waived because of employer’s failure to raise it before the board as an alternative basis for prevailing on claimant’s review proceedings. The board concluded:
“Here, because the employer did not preserve the affirmative defense of timely claim filing on initial Board review and on judicial review, it has not carried its threshold ‘burden,’ and we decline to address the defense for the first time on remand.”
(Emphasis in original; footnote omitted.)
On review of the board’s order on appeal, employer claims that the board abused its discretion under ORS 183.482(8) because the question of preservation was immaterial, and the board provided “no case law or policy reason why it would not now be capable of addressing the timely claim argument raised at hearing.” ORS 183.482(8) provides our standards of review:
“(a) The court may affirm, reverse or remand the order. If the court finds that the agency has erroneously interpreted a provision of law and that a correct interpretation compels a particular action, the court shall:
“(A) Set aside or modify the order; or
“(B) Remand the case to the agency for further action under a correct interpretation of the provision of law.
“(b) 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 official stated agency position, or a prior agency practice, if the inconsistency is not explained by the agency; or
*509“(C) Otherwise in violation of a constitutional or statutory provision.”
The majority holds that the board did not abuse its discretion in “applying its own rule of preservation” because it ‘días the authority to establish its own rules regarding preservation and * * * the parameters of the circumstances [that] suffice to constitute adequate preservation * * * so long as those standards do not exceed the grant of authority from the legislature to the agency.” 218 Or App at 504. Applying our standard of review under ORS 183.482(8)(b)(A), the majority concludes that the board’s “exercise of discretion” to apply its rule of preservation was not “outside the range of discretion delegated to the agency by law,” because ORS 656.726(5) confers authority on the board to “make and declare all rules.” In deciding the case on that basis, the majority assumes that the rule of preservation adopted by the board was properly applied to dispose of the administrative proceeding.
I agree that the board has broad authority to establish prospective rules regarding preservation of issues in proceedings before an ALJ. I also agree that the board could establish rules governing whether a party not appealing to the board must cross-appeal the order of an ALJ or otherwise raise an alternative, undecided basis for affirming that order if the party wishes to continue to rely on that contention. Where I differ with the majority is on the question of whether the preservation of error principle that the board applied was sufficient to determine the outcome of this case. In my view, it was not, and the board erred in not construing and applying the rules that were applicable at the time of the initial appeal to the board to determine if employer waived its second affirmative defense.
The board treated the issue as one of preservation of error, a principle, sometimes codified, that requires a party claiming error to present an issue to a lower tribunal before the reviewing entity will consider the issue on appeal. The purposes of the preservation requirement imposed as a part of judicial review are to promote fairness to the parties in making and responding to arguments asserted in a case and efficient judicial administration. Peiffer v. Hoyt, 339 Or 649, *510656, 125 P3d 734 (2005). For example, ORAP 5.45(1) formalizes the requirement of preservation of error in the Oregon appellate courts:
“No matter claimed as error will be considered on appeal unless the claimed error was preserved in the lower court and is assigned as error in the opening brief in accordance with this rule, provided that the appellate court may consider an error of law apparent on the face of the record.”
The application of that preservation of error principle to board proceedings would require a party to raise an issue before the ALJ in order to claim to the board that the ALJ erred in deciding that issue. The purposes of such a preservation requirement would be to allow full record-making and argument about the issue before the ALJ and the opportunity for resolution of the contention by the ALJ without need for board review. That preservation prerequisite would apply to any party appealing to the board who claims that the ALJ erred. Applying that preservation principle in the case at bar, if the ALJ had allowed employer’s first affirmative defense and denied its second affirmative defense and both parties had appealed, claimant would have needed to preserve its contention that the claim was not barred by the first affirmative defense and employer would have needed to preserve its contention under the second affirmative defense.
The board found that this preservation principle applied in the previous proceedings and determined the outcome of the current matter before the board, relying on decisions of this court relating to appellate court review and on a single board order. The board cited and relied on Fraser v. LCDC, 206 Or App 735, 738, 138 P3d 932 (2006) (petitioner’s preservation of claimed error by administrative agency in considering exhibit for purposes of appellate court review); Christensen v. Cober, 206 Or App 719, 726, 138 P3d 918 (2006) (appellant’s preservation of claimed error by trial court in withholding exhibit from jury for purposes of appellate court review); Wahlgren v. DMV, 196 Or App 452, 457-58, 102 P3d 761 (2004) (petitioner’s preservation of claimed error by ALJ in not deciding right to counsel issue for purposes of circuit court review); Marvin Wood Products v. Callow, 171 Or App 175, 184, 14 P3d 686 (2000) (the “party *511seeking affirmative relief on appeal or review must identify an error in the decision * * * [and] the party who prevailed at an initial level of adjudication is entitled to rest on that resolution”); Westendorf and Westendorf, 165 Or App 175, 178, 996 P2d 523 (2000) (appellant’s preservation of claimed error by trial court in improperly dividing pension assets for purposes of appellate court review); Judith C. White-Munro, 54 Van Natta 2116 (2002) (petitioner claimant’s preservation of claimed error by ALJ on discovery violation for purposes of workers’ compensation board review).
To whatever extent the board relied on those precedents in shaping its conclusion on preservation of error, the cases establish only that a party seeking to change the result of an agency or court decision has an obligation to present a claim to the lower tribunal in order to preserve that claim as a basis of review by a court or agency. The cases do not discuss different reviewability questions — the ones pertinent to this proceeding — such as 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.
The so-called “preservation” principle applied by the board here has nothing to do with any procedural requirement to appeal a decision in the party’s favor or to separately appeal an undecided issue. The board determined that employer did not preserve a claim of error when it failed to argue to the board an undecided and alternative basis for denying claimant’s claim. Preservation principles concern the obligation of an appellant or petitioner on review to raise a contention with the lower tribunal in order to preserve that contention for review. Here, employer was not the party appealing the board’s order; it did not seek to change the result of the AL J’s order. Employer did not claim error. Moreover, preservation principles relate to review of a decision by the lower tribunal. The ALJ did not decide the merits of employer’s second affirmative defense. There was nothing to review.
The majority opinion explains that the board did not apply any preservation of error principle to reject employees’ *512contentions on the merits, at least “the same kind of‘preservation,’ * * * as we understand the meaning of the term for purposes of ORAP 5.45(1).” 218 Or App at 506.1 disagree that the board did not apply that kind of preservation principle. After all, it cited and relied only on cases discussing only that policy. I conclude that the board applied that preservation of error principle wrongly, not that it did not apply it at all. If the board did not apply a preservation of error principle, as we understand the meaning of the term, then what principle did it apply and was that application correct? Putting aside the red herring issue of whether the board is “entitled to characterize its decision in any manner that it desires,” 218 Or App at 506, what policy or principle did the board use to decide this proceeding? Was it that an employer has to raise all issues not decided by the ALJ in any appeal by a claimant to the board or that an employer waives the right to raise any of those issues thereafter? Does that policy apply to a claimant as well? Does it apply to policies decided in an employer’s favor when review is sought by a claimant?
Because I cannot tell what “not-really-preservation” principle was applied by the board, I cannot determine if the application of that policy or rule is “outside the range of discretion delegated to the agency by law” under ORS 183.483(8)(b)(A). That is precisely what employer complains about in its brief in contending that the board provided “no case law or policy reason why it would not now be capable of addressing the timely claim argument raised at hearing.”
Thus, the board abused its discretion in deciding the outcome of the case on the basis of an immaterial principle of preservation of error. In order to determine whether employer’s timeliness of claim defense was waived by failure to seek review, the board must apply the reviewability standards that existed at the time that the initial intra-agency appeal was filed. ORS 656.289 and ORS 656.295 regulate the process of board review of an ALJ order. ORS 656.289(3) explicitly allows a cross-review when review of an ALJ order is obtained. The board has an administrative rule on cross-appeals. OAR 438-011-0020. ORS 656.295(5) provides that board review is “based upon * * * such oral or written argument as it may receive.” If the board determines that a case *513“has been * * * incompletely * * * developed or heard,” it may remand the case to the ALJ for “necessary action.” Id.
Those standards may or may not decide the issue of whether employer’s defense was waived by its failure to assert the defense in the initial board appeal. That issue is not before the court. The interpretation and application of those standards is a matter of agency discretion in the first instance. What is before the court is whether the board’s use of an immaterial principle of preservation to decide the waiver issue, instead of potentially relevant statutes and rules that applied at the time, was an abuse of discretion under ORS 183.482(8)(b)(A). I respectfully dissent from the majority’s conclusion that the board’s generic rulemaking authority under ORS 656.726(5) gives the board discretion to apply immaterial or unknown legal principles instead of applicable statutes and rules to determine the outcome of a proceeding before the board.1
Given my conclusion that the procedural rule applied by the board was immaterial, it is not necessary to address whether the board could adopt a rule of procedure through a contested case order under ORS 656.726(5) or whether the board could apply a newly adopted procedural rule retroactively in order to determine the outcome of a proceeding under the Due Process Clause of the Fourteenth Amendment to the United States Constitution.