Fred Meyer Stores v. Godfrey

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…