The opinion
ON PETITION FOR REHEARING
*358 John J. Ilaugh and Pozzi, Wilson & Atchison, Portland, for the petition.
Jaqua, Wheatley & Gardner, Eugene, contra.
PER CURIAM.
In a petition for rehearing, the plaintiff urges that we revise our opinion to provide that the portion *359 of the trial court’s judgment awarding attorney fees be affirmed notwithstanding the reversal of the judgment on the merits. (The trial court had increased a widow’s compensation $25.00 per month because of the presence in the family of an invalid child over the age of 18 years, and had awarded attorney fees in the sum of $1,500.) We held that the widow’s statutory right to additional compensation on account of dependent children left by a deceased workman did not extend to compensation for children over the age of 18 regardless of their de facto condition of dependency. This holding reduced the trial court’s award to the widow to the amount fixed by the board prior to the circuit court review. Under ORS 656.313, the widow was entitled to the payments of compensation at the rate ordered by the trial court during the pendency of the appeal to this court; and these payments are not refundable or subject to recapture in the event the judgment is reversed.
Because of the “vested” nature of the interim payments, the plaintiff now argues that the right to attorney fees based upon the circuit court judgment also became vested and not subject to the usual consequences of reversal upon appeal. This argument cannot be sustained in reason or precedent.
The attorney fees were awarded in the circuit court pursuant to ORS 656.386(1), which makes such an award contingent on the claimant’s prevailing in an appeal to the circuit court from a board order denying a claim. When the circuit court is reversed, the board order is restored (except for interim payments specifically placed beyond recapture). The circuit court judgment in effect becomes a nullity, and it would seem inappropriate to allow attorney fees that *360 had been awarded on the basis of a successful judicial review to survive the reversal of that judicial review. It was our intent, in announcing the reversal of the trial court’s judgment, to reverse it in its entirety, including the award of attorney fees.
Petition denied.