concurring.
I agree with the majority that we erred in awarding attorney fees under ORS 656.382(2) to claimant for his attorney’s work in our court to reverse an erroneous Workers’ Compensation Board decision. Whether the Board can award attorney fees to claimant on remand and whether it can include in its award fees for the work before us are issues that have not been raised or argued by the parties. Consequently, the court cannot now decide them. I note, however, that ORS 656.382(2) arguably could provide authority for the Board to award fees to claimant for the work before us when the Board later affirms the administrative law judge’s award to claimant on insurer’s request for review.
ORS 656.382(2) provides:
“If a request for hearing, request for review, appeal or cross-appeal to the Court of Appeals or petition for review to *475the Supreme Court is initiated by an employer or insurer, and the Administrative Law Judge, board or court finds that the compensation awarded to a claimant should not be disallowed or reduced, the employer or insurer shall be required to pay to the claimant or the attorney of the claimant a reasonable attorney fee in an amount set by the Administrative Law Judge, board or the court for legal representation by an attorney for the claimant at and prior to the hearing, review on appeal or cross-appeal.”
After a hearing, an administrative law judge (ALJ) increased claimant’s compensation award. Insurer requested review by the Board of the ALJ’s decision. On review, the Board reversed the ALJ. Claimant then sought review by us, and we reversed the Board. The effect of our decision is that, on remand, the Board will enter an order that affirms the ALJ’s prior award. See Santos v. Caryall Transport, 163 Or App 414, 987 P2d 1271 (1999); Crowder v. Alumaflex, 163 Or App 143, 986 P2d 1269 (1999).
By entering that order, the Board will have found that the compensation awarded to claimant by the ALJ “should not be disallowed or reduced.” It will make that determination on an insurer-initiated review to the Board, so claimant apparently will be entitled to an award of attorney fees under ORS 656.382(2) from the Board.1 In making that award, the Board is to include attorney fees incurred “prior to the * * * review.” ORS 656.382(2). The attorney fees incurred on review to us were incurred prior to the Board’s final decision on review, so the statute may provide authority for the Board to include those fees in its award of fees on remand.
Wollheim, J., joins in this concurrence.Our decision returned the case to the Board and, but for our decision, there would be nothing pending before the Board. However, the matter that the Board must address on remand is the proper disposition of the insurer-initiated review of the ALJ’s decision. The Board’s decision on remand will be to affirm the ALJ in that matter, which is to say that it will dispose of the insurer-initiated request for review, not our remand order. Our decision simply tells the Board how to resolve an issue that will be back before the Board on the insurer-initiated review.