¶ 18. dissenting. Certainly, claimant “prevailed” on appeal insofar as her claim was remanded to the Commissioner for want of findings and conclusions necessary to support the decision to deny her benefits. Just as certainly, however, claimant has not prevailed on the merits of her claim for compensation. Reading 21 V.S.A. § 678(a) and (b) as one legislative scheme governing the award of attorney’s fees, the plain meaning is that attorney’s fees are allowed, along with interest on disputed compensation, when “claimants prevail” on their compensation claims, rather than on piecemeal intermediate appellate claims like this one that result in no award. Moreover, any award of attorney’s fees in connection with an appeal must be approved by the court, 21 V.S.A. § 678(b), and, as a matter of policy, our approval should be conditioned upon claimant ultimately prevailing on her benefits claim, lest we subsidize lawyers for scoring legal points producing no compensation for claimants. Accordingly, while agreeing that the fees as presented are reasonable, I would deny their actual award as premature at this time and so respectfully dissent.
¶ 19. As recounted above, the Commissioner denied claimant’s request for workers’ compensation benefits in November 2009. Claimant appealed directly to this Court, and we held that the Commissioner failed to make findings and conclusions necessary to support the denial. McNally v. Dep’t of PATH, 2010 VT 99, ¶ 10, 189 Vt. 515, 13 A.3d 656 (mem.). We did not conclude that claimant was entitled to benefits. Instead, we reversed and remanded “for a clarification of both the findings and conclusions of law, specifically, whether claimant’s hand pain arose out of and in the course of her employment, how it was or was not causally related to her snow shoveling, and, if related, whether the shoveling was a normal activity of daily living.” Id. The remand expressed no opinion on the ultimate merits of the claim.1 Id. ¶ 10 n.2.
¶ 20. Notwithstanding that there is no decision as to whether claimant is entitled to workers’ compensation, the majority labels claimant as the prevailing party for purposes of 21 V.S.A. § 678(b). It is a mistake to do so. The statute need not be so applied to vindicate and protect an employee’s financial stake in appeal and final award if she should win her case, since all attorney’s fees may be recovered when she wins. On the other hand, treating fees as immediately mandated against an employer losing an intermediate, rather than final, appeal simply penalizes employers who defend unsuccessfully against such appeals when, despite a procedural or substantive gaffe by the Commissioner, the employee is still not entitled to recover.
*596¶ 21. The Workers’ Compensation Act seeks to protect claimant recoveries arrived at through litigation by authorizing the award of attorney’s fees against employers. Section 678 begins by mandating an assessment of costs against the employer “when the claimant prevails’,’ and authorizing the Commissioner to “allow the claimant to recover reasonable attorney fees when the claimant prevails” in obtaining an award of benefits at the initial administrative hearing. 21 V.S.A. § 678(a) (emphases added). Commissioner decisions are appealable to the superior or to the Supreme Court. Id. §§ 670, 672. In the same vein, § 678(b) next provides that:
In appeals to the superior or supreme courts, if the claimant prevails, he or she shall be entitled to reasonable attorney fees as approved by the court, and interest at the rate of 12 percent per annum on that portion of any award the payment of which is contested.
(Emphases added.) Explicitly, and implicitly when properly considered in pari materia with the entirety of § 678(a), subsection (b) contemplates attorney’s fees for claimants “prevailing” on an appeal that results in an actual “award” of compensation upon which interest can be assessed. Authorized conjunctively by § 678(b), or “hand in glove” so to speak, with post-judgment interest on disputed compensation awards, attorney’s fees should not be ordered separately and independently from such an award.
¶ 22. No such award was achieved here, yet. Absent such an award, no attorney’s fees are due claimant, yet. Claimant’s fees need be denied pending completion of her case, and until “claimant prevails” as required by § 678(b).2
¶ 23. Nor does any harm accrue to claimant in waiting for a final decision on the merits. Should claimant ultimately prevail, she will be entitled to recover attorney’s fees for this appeal. Should claimant lose, no attorney’s fees are warranted. This approach ensures a consistent application of § 678 and satisfaction of the manifest legislative intent — with the logical result that there can be only one “prevailing party” in a contested workers’ compensation case.
¶24. Other courts recognize that an intermediate appellate victory, as presented here, may be transitory only, and is not deserving of a statutory award of attorney’s fees without victory on the merits. In Henderson v. Jantzen, Inc., for example, the plaintiff successfully appealed from a grant of summary judgment and, on remand, sought attorney’s fees under Oregon law permitting “the prevailing party costs and reasonable attorney fees at trial and on appeal.” 737 P.2d 1244, 1245 (Or. 1987) (quotation omitted). The Oregon statute provided *597that the term “prevailing party” on appeal “may include, at the discretion of the appellate court, any party who obtains a substantial modification of the judgment, decree or other decision of the trial court.” Id. at 1245-46 (quotation omitted). The Oregon Court of Appeals concluded that the plaintiff was a prevailing party within the meaning of the statute. Id. at 1246.
¶ 25. The Oregon Supreme Court reversed, finding the lower court’s interpretation of the statute too literal. “While there can be no gainsaying the fact that plaintiff’s success here is a ‘substantial modification,’ ” the court observed, the award was inappropriate given the plaintiff’s “intermediate and, possibly, temporary success.” Id. The court found the Oregon statute aimed primarily at “a situation in which the appellate disposition effectively brings the proceedings to an end.” Id. As it explained:
A party who “prevails” temporarily ultimately may lose the case on the merits. Such temporary gains do not warrant the award of attorney fees. Any other rule creates the spectre of cases in which, because of successive appeals, all or several contending parties ultimately end up owing attorney fees to each other. The proper exercise of discretion . . . will avoid such anomalous circumstances.
Id. at 1246-47.
¶ 26. This approach is consistent with the United States Supreme Court’s reasoning that “[rjespect for ordinary language requires that a plaintiff receive at least some relief on the merits of his claim before he can be said to prevail.” Hewitt v. Helms, 482 U.S. 755, 760 (1987). In Hewitt, the plaintiff filed a civil rights action against prison officials. At one point in the litigation, the plaintiff secured a favorable decision by the circuit court of appeals, but summary judgment was ultimately granted to the defendants on qualified immunity grounds. The plaintiff subsequently sought attorney’s fees under 42 U.S.C. § 1988, which provides, in relevant part, that “the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.” Id. at 759 (quotation omitted). The trial court denied the plaintiff’s request, but the court of appeals reversed, finding the plaintiff’s victory before the circuit court constituted a form of judicial relief to make the plaintiff a prevailing party under the statute. Id.
¶ 27. The Supreme Court reversed, explaining “[t]he most that [the plaintiff] obtained was an interlocutory ruling that his complaint should not have been dismissed for failure to state a constitutional claim. That is not the stuff of which legal victories are made.” Id. at 760. Reaching its conclusion, the Court emphasized the temporary nature of such a ruling, noting that the ruling left it for the trial court “to determine the appropriateness and availability of the requested relief.” Id. (quotation omitted). This is little more than a recognition of the obvious: pyrrhic victories do not merit recovery of attorney’s fees because the “real value of the judicial pronouncement — what makes it a proper judicial resolution of a ‘case or controversy’ rather than an advisory opinion — is in the settling of some dispute which affects the behavior of the defendant towards the plaintiff.” Id. at 761. As in the instant case, the ruling in favor of the plaintiff’s intermediate appeal affected no behavior of the defendant towards him, and “a judicial statement that does not affect the relationship between the plaintiff and the defendant” does not suffice to “prevail.” Id.; see also Buckhannon Bd. & Care Home, Inc. v. W. Virginia Dep’t of Health & Human Res., 532 U.S. 598 (2001) (applying this standard).
¶ 28. Hemtt echoed a similar conclusion arrived at earlier in Hanrahan v. *598Hampton, 446 U.S. 754 (1980) (per curiam). The plaintiffs there filed a civil rights suit, and the trial court directed a verdict for the defendants. Id. at 754. The court of appeals reversed and remanded for a new trial, also awarding the plaintiffs their costs and attorney’s fees on appeal under 42 U.S.C. § 1988. The Supreme Court reversed the award, finding that the plaintiffs were not “prevailing parties” in the sense intended by the statute. Id. at 758. The Court explained that while Congress contemplated the award of fees pendent lite in some cases, it clearly intended “to permit such an interlocutory award only to a party who has established his entitlement to some relief on the merits of his claims, either in the trial court or on appeal.” Id. at 757. “For only in that event has there been a determination of the ‘substantial rights of the parties,’ ” the Court continued, “which Congress determined was a necessary foundation for departing from the usual rule in this country that each party is to bear the expense of his own attorney.” Id. at 758. Having achieved only a new trial, the Court concluded that the plaintiffs had not prevailed on the merits of any of their claims. Id. As the Court stated:
The jury may or may not decide some or all of the issues in favor of the [plaintiffs]. If the jury should not do so on remand in these cases, it could not seriously be contended that the [plaintiffs] had prevailed. ... As is true of other procedural or evidentiary rulings, these determinations may affect the disposition on the merits, but were themselves not matters on which a party could “prevail” for purposes of shifting his counsel fees to the opposing party under § 1988.
Id. at 759.
¶ 29. We should reach a similar conclusion here. As in Hanrahan, claimant succeeded only in obtaining a remand for clarification of the Commissioner’s decision. She did not prevail on the ultimate question of whether she is entitled to workers’ compensation benefits. The term “prevails” in § 678(b) should be recognized as the legal term of art it plainly represents. See Buckhannon, 532 U.S. at 615 (Scalia, J., concurring) (stating that when the term “ ‘prevailing party’ is used by courts or legislatures in the context of a lawsuit, it is a term of art”). As Justice Scalia observed, the term “has traditionally — and . . . invariably — meant the party that wins the suit or obtains a finding (or an admission) of liability.” Id. To be entitled to an award of attorney’s fees, a party must do more than simply obtain a favorable interlocutory ruling. Even though in one sense such a claimant can be said to have “prevailed,” he or she is not yet “the prevailing party in the lawsuit.” Id. (recognizing that “[w]ords that have acquired a specialized meaning in the legal context must be accorded their legal meaning”).
¶ 30. Here, the legal meaning of “prevailing” flows not only from logic and tradition as outlined by Justice Scalia, but also from the plain language of the statute. The express context of the prevailing party being “entitled to reasonable attorney fees” on appeal is coupled with being entitled to “interest... on that portion of any award the payment of which is contested.” 21 V.S.A. § 678(b) (emphasis added). Thus the statute contemplates, unambiguously, employers paying claimants’ legal fees at the end of the contest, when the claimant wins a disputed award and the employer loses. Entitled after appeal to neither interest nor any award in this appeal, it follows that claimant is presently entitled to no attorney’s fees under § 678. The majority’s construction of the statute — to reimburse a claimant for what amounts to a successful instant replay appeal of a referee’s call, even when the claimant fails to prevail at *599game’s end — is not what the statute intends or what fairness requires.
¶ 31. In support of reading the statute to allow legal fees to parties who lose their cases, the majority seeks to distinguish the several contrary holdings by other courts, reasoning that “they ... do not involve statutes pertaining to attorney’s fees exclusively for proceedings on appeal.” Ante, ¶ 9. This is a distinction without a difference. All of the cases discussed above involved litigants attempting to recover attorney’s fees for intermediate appeals like this one. The right to recover such fees is implicit, and in some cases explicit, in the statutory provisions at issue. That Vermont’s Legislature similarly recognized that a prevailing party can recover attorney’s fees on appeal does not compel the majority’s conclusion that fees therefore should be awarded to parties who do not ultimately prevail on the merits.
¶ 32. The majority’s reliance on Prime Insurance Syndicate, Inc. v. Soil Tech Distributors, Inc. is similarly misplaced. 270 F. App’x 962 (11th Cir. 2008) (per curiam). In Prime, an insurance company’s underlying action for declaratory judgment against its insured was dismissed by the trial court for lack of jurisdiction, and no appeal was taken from this decision. Id. at 963. The defendant-insured then applied for, and was granted, attorney’s fees under a statute allowing an award of attorney’s fees to the “prevailing party” in certain disputes between an insurer and its insured. Id. Because the statute required only “rendition of a judgment ... against an insurer and in favor of [an] insured,” id., the appeals court rejected the argument that, as a precondition to fees, a party must prevail on the merits. Id. at 964. Unlike § 678(b), however, the statutory basis for the fee award in Prime was unconnected to any contemporaneous award of disputed compensation. Likewise, the fee award in Prime was deemed due following a case-winning final judgment, unlike the remand in the instant case returning the parties to the Commissioner for a determination on the merits. Prime offers no guidance in the application of § 678, a statute different in terms and purpose.
¶ 33. This Court’s decision in Pollard v. Wheelock is equally unhelpful. 20 Vt. 370 (1848). In Pollard — decided in 1848 and cited most recently in 1853 — the Court reflected its practice that the “party prevailing in the suit only takes costs in those parts of the trial in which he prevails; and costs are allowed the other party in those portions of the case in which he prevails, and judgment is rendered for the party finally prevailing only for the balance.”3 Id. at 373. Pollard addressed assessment of costs only, and not attorney’s fees. Costs are awarded to a prevailing party “[b]y the long established practice and universally recognized rule of the common law,” while it has long been the rule that attorney’s fees “are not ordinarily recoverable.” Buckhannon, 532 U.S. at 606 n.8 (quotations omitted). That this Court recognized in 1848 that costs are *600Court recognized in 1848 that costs are recoverable by a prevailing party does not lead to a conclusion that the Legislature intended to depart from the American Rule by allowing attorney’s fees in workers’ compensation cases without a final judgment on the merits.
¶ 34. The majority cites Buckhannon for the proposition that a prevailing party “is generally defined as a party in whose favor a judgment is rendered, regardless of the amount of damages awarded.” Ante, ¶ 11 (quotation omitted). Relying on this statement, the majority concludes that claimant here “was plainly the prevailing party in the appeal.” Id. The United States Supreme Court did not, however, equate a mandate with a judgment as the majority does here. It is clear that the Buckhannon Court would not reach the majority’s result since Buckhannon held that to be a prevailing party entitled to attorney’s fees a party must secure a judgment on the merits or a court-ordered consent decree. 532 U.S. at 604.
¶ 35. We should employ the same approach, and deny attorney’s fees in the absence of a final judgment or consent decree actually closing the case. Under § 678(b), employers need not pay a claimant’s attorney’s fees except in tandem with an order to pay an award of compensation. Accordingly, I respectfully dissent from making employer pay such fees before claimant actually wins her case.
¶ 36.1 am authorized to state that Chief Justice Reiber joins this dissent.
Further illustrating the unsettled nature of these proceedings, we noted that the last claim of error on appeal — that the Commissioner failed to consistently apply the Department’s own internally developed case law — was unpersuasive as it rested on unresolved assumptions. Id. ¶ 11.
The majority posits that proceedings before the Commissioner and this Court must be considered as separate and distinct. Maintaining such a separation would mean, then, a claimant who lost before the Commissioner but won on appeal could recoup attorney’s fees before this Court, but not for the underlying administrative hearing before the Commissioner. Such a result, of course, does not obtain because our case law expressly holds otherwise. In Sargent v. Town of Randolph Fire Department, we recognized that the proceedings are not distinct, and “the statutory scheme, as shown in [21 V.S.A.] § 671, requires the Commissioner to treat the claimant’s success at trial or on appeal as success before the Commissioner.” 2007 VT 56, ¶ 15, 182 Vt. 546, 928 A.2d 525 (mem.).
The procedure governing the recovery of costs is now set forth by rule. See V.R.C.P. 54(d)(1) (“Costs other than attorneys’ fees shall be allowed as of course to the prevailing party, as provided by statute and by these rules, unless the court otherwise specifically directs.”); V.R.A.P. 39 (setting forth procedure for recovery of costs on appeal); see also 10 C. Wright et al., Federal Practice & Procedure: Civil § 2667, at 209 (3d ed. 1998) (observing that it would be unsound to allow judgment for costs in the court of appeals to be set off against judgment for costs in the Supreme Court because “a determination of who is the prevailing party for purposes of awarding costs should not depend on the position of the parties at each stage of the litigation but should be made when the controversy is finally decided” (emphasis added)).