dissenting.
The issue in this case is one of statutory interpretation. ORS 656.382(2) provides that the Workers’ Compensation Board (the board) shall award a reasonable attorney fee to a claimant if a request for review is initiated by an employer and the board “finds that the compensation awarded to a claimant should not be disallowed or reduced.” The question is whether the legislature intended for the board to award attorney fees under the statute when this court remands for the board to enter an order that affirms the administrative law judge’s (ALJ) prior award. The majority answers the question in favor of employer in two ways: it says that we decided that issue adversely to claimant in Santos v. Caryall Transport, 171 Or App 467, 17 P3d 509 (2000), rev den, 332 Or 558 (2001) (Santos II), and, alternatively, that the reasoning in Aguiar v. J. R. Simplot Co., 94 Or App 658, 767 P2d 86 (1989) (Aguiar II), defeats claimant’s argument. Because I disagree with both prongs of the majority’s analysis, and therefore with its result, I dissent.
The above issue is framed by the following facts. Claimant was injured in a work-related accident. During the time that his workers’ compensation claim was being processed, the legislature amended ORS 656.214(6) to increase the amount of money to be awarded for each degree of disability. Under the amendment, claimant was entitled to the increased amount. However, employer did not pay claimant at the increased rate. Claimant sought a hearing before an ALJ, who ordered employer to pay in accordance with the increased rate. Employer appealed the ALJ’s order to the board. The board ruled in favor of employer. Claimant sought review in this court, and we reversed and remanded the case *297to the board for recalculation of the amount of permanent disability. On remand, the board awarded claimant permanent disability in accordance with the increased rate, as the ALJ originally ordered. The board also awarded attorney fees to claimant pursuant to ORS 656.382(2) for services rendered in the proceeding before the board. Employer challenges the award of attorney fees in the board’s order.
The majority contends that we previously decided claimant’s entitlement to attorney fees for services rendered before the board in Santos II. In our first decision, Santos v. Caryall, 163 Or App 414, 987 P2d 1271 (1999) (Santos I), we reversed the board’s ruling that claimant was not entitled to the new rate on the merits. Our per curiam opinion, stated, in its entirety,
“Reversed and remanded for recalculation of amount of permanent partial disability payment. Crowder v. Alumaflex, 163 Or App 143, 986 P2d 1269 (1999).”
After prevailing on the issue of the calculation of permanent partial disability, claimant sought an award under ORS 656.382(2) “for his attorney’s services in this court.” Santos II, 171 Or App at 469. We rejected claimant’s request, observing,
“The concurrence agrees that ORS 656.382(2) does not authorize an award of fees by this court. The concurrence expresses the view, however, that even though this court lacks authority under the statute to award fees, on remand from this court, it is arguably correct that the Board has the authority to make an award of attorney fees. As the concurrence recognizes, the first and most serious problem with its position is that the question of the Board’s authority to award fees on remand from this court is not before us. Accordingly, we do not address the issue at this time.”
Id. at 473-74.
While it is correct that claimant’s successful initiation of judicial review in this court did not entitle him to an award of attorney fees under a statute that requires an employer-initiated proceeding before an ALJ, the board, or a reviewing court, it does not necessarily follow that that omission in the statutory scheme resulted in the board’s lack of authority to award attorney fees on remand from this court. *298The effect of our remand was to return the claim to the board in the same posture that it had when employer appealed to the board from the ALJ’s ruling. Thus, on remand, the board had before it procedurally an employer-initiated appeal, thereby satisfying that requirement of ORS 656.382(2). The remaining issue is whether, as the statute requires, the board found that the compensation awarded to claimant by the ALJ “should not be disallowed or reduced.”
The word “finds” in ORS 656.382(2) has a recognized legal meaning. When a tribunal “finds” or makes a “finding,” it refers to a determination made either by a court or an administrative agency from the evidence in a case. Norden v. Water Resources Dept., 329 Or 641, 646-47, 996 P2d 958 (2000). Here, the board’s order on remand recited the procedural history of the case and, after observing that we had remanded “for recalculation of the amount of permanent partial disability (PPD),” ruled:
“Consistently] with Crowder, after reconsidering this matter, we affirm the ALJ’s order that directed the SAIF Corporation to recalculate claimant’s PPD award at the rate set forth in the 1995 amendment to ORS 656.214(6).”
Two conclusions flow from the actions of this court in Santos II and the board after remand. First, we made no findings in Santos II. We did not order the board to determine a particular amount of partial disability; rather, we ordered the board to recalculate the amount of permanent partial disability in accordance with the applicable law. Second, it is apparent from the above ruling made by the board that it made its own findings about the amount of the award of permanent partial disability based on the evidence before it, or, in the language of the ORS 656.382(2), it determined after remand and on appeal from the ALJ’s decision that claimant’s compensation should not be disallowed or reduced. Thus, it was ultimately the board’s action, and not ours, that resulted in findings that led to an award of compensation to claimant.
The majority reasons differently. Based on our holding in Aguiar II, it concludes that the board’s order on remand was merely a ministerial recalculation. It explains that, as in that case, “[t]he board’s recalculation here did not *299require it to make a substantive determination on the issue presented by employer in its original appeal to the board.” 194 Or App at 295. However, our holding in Aguiar II is not controlling precedent in this case for several reasons. First, Aguiar II did not involve an interpretation of ORS 656.382(2). Rather, the governing statute in that case was ORS 656.388(1), which required that a claimant “finally prevail” before the statute authorized an award of attorney fees. That statutory predicate to an award of attorney fees is not present in this case.
Second, the claimant in Aguiar II argued that he had “finally prevailed” only after the board issued its order on remand reinstating only the ALJ’s award of attorney fees for services provided at hearing. His argument arose under the following circumstances. In our previous opinion before the remand, we had determined the substantive issues regarding compensability in favor of the claimant, and we had remanded to the board for the ministerial implementation of our decision. There were no substantive issues regarding the compensability of the claimant’s claim after our decision, and the claimant had finally prevailed on those issues. The claimant’s request for attorney fees to this court that followed after our ruling was untimely. The claimant then sought attorney fees from the board after our remand. The board declined to award fees for services rendered at subsequent levels of review, and the claimant sought judicial review of the board’s ruling in that regard. On review, we held that the board had properly concluded that it lacked the authority to award attorney fees under the statute on remand because claimant had not finally prevailed before the board; rather, he had finally prevailed on the merits in the earlier proceeding before this court.
Of course, at issue in this case is the entitlement to an award of attorney fees under ORS 656.382(2), a different statute with different requirements from ORS 656.388(1). In contrast to Aguiar II, the statute governing this case does not condition an award of attorney fees on the level at which the claimant finally prevails but on the findings made in response to an employer-initiated appeal. Thus, whether or not the board acts ministerially on remand from us is irrelevant to an award of fees under ORS 656.382(2). It was only *300when the board made findings on remand that claimant’s compensation was determined not to be disallowed or reduced. Before the board’s recalculation of the disability award, claimant had not met the requirements of the statute for an award of fees. It was only after remand, and after the board made its ruling, that a comparison could be made to determine whether the compensation awarded to claimant by the ALJ had been disallowed or reduced on an employer-initiated appeal. It follows for these reasons that our holding in Aguiar II is not controlling in this case.
The board was correct when it ruled that claimant had satisfied the statutory requirements for an award of attorney fees under ORS 656.382(2), and accordingly, for the above reasons, I dissent.