dissenting.
I must respectfully dissent to the majority’s affirmance of the superior court in this workers’ compensation case because I believe that the majority opinion erroneously construes the applicable statutory provisions as applied to the facts sub judice. The task before this court is to reconcile any conflict between OCGA § 34-9-221 (f) and OCGA § 34-9-105 (b). OCGA § 34-9-221 (f) provides that if income benefits are not paid “within 20 days after becoming due” a 20 percent penalty is assessable. However, as noted by the majority, OCGA § 34-9-105 (b) allows 30 days within which either party may appeal from any award of the Board. Apparently attempting to construe the two Code sections in pari materia, the majority first relies upon the interpretation set forth in the Georgia Workers’ Compensation Practice Manual which, as shown on page 515 of the majority opinion, opines that notwithstanding the fact that an employer has 30 days within which to file an appeal, such employer must, within 20 days of the appeal, decide whether to appeal or risk a 20 percent penalty in the event a timely appeal is not ultimately filed. However, ultimately and somewhat inconsistently, the majority appears to hold that even if an appeal is filed after 20 days but before 30 days, the penalty is assessed subject to reimbursement if and only if the appeal is successful. Ironically, it further appears that the majority would hold that an appeal filed within 20 days prevents imposition of the penalty until 20 days following the resolution of the appeal even if the appeal is unsuccessful. In my opinion, this approach is both confusing and illogical. Of course, the rationale underlying the majority’s resolution of the issue is based primarily upon Rule 221 (f) of the State Board of Workers’ Compensation, which proclaims that “accrued benefits payable under the terms of an award are due on the date the award is issued.” (Emphasis supplied.) However, as the majority must and does recognize, a rule of the Board remains viable only to the extent *518that it is not inconsistent with the mandates of the applicable statutory provisions. See Holt Svc. Co. v. Modlin, 163 Ga. App. 283 (293 SE2d 741) (1982).
Decided June 26, 1986. James C. Gaulden, Jr., for appellant.In the instant case, to the extent that the Board rule requires payment to be made within 20 days of the date of the award so as to avoid the 20 percent penalty provision of OCGA § 34-9-221 (f), it is inconsistent with the letter and spirit of OCGA § 34-9-105 (b) which allows a party 30 days within which to decide whether or not to file an appeal from an award. Quite simply, the award is not final or “due” until the appeal time has run or the appeal procedure has been exhausted. See Gentry v. Ga. Cas. &c. Co., 109 Ga. App. 294 (136 SE2d 26) (1964).
The majority classifies as obiter dicta the recent statement by this court that the construction which I propose “may be valid as a general proposition.” Linehan v. Combined Ins. Co., 176 Ga. App. 815, 816 (338 SE2d 34) (1985). While I disagree with the majority’s conclusion that the above-mentioned portions of Linehan are dicta, I will not further address that point since Linehan is without binding precedential value in any event because only two judges concurred in the opinion. Court of Appeals Rule 35 (b). However, I sincerely believe that such “construction” is valid and viable “as a general proposition” and that the only reason such interpretation was not applicable in Linehan was because, in that case, the benefits were “due” when the award was filed in that the award was entered by consent of the parties. However, in cases other than those involving consent awards, it is inconceivable that the legislature intended to require a party to resolve the question of whether it would appeal 10 days prior to the date on which such an appeal could be filed. The only reasonable construction is that in cases where an appeal from a non-consent award is not timely filed, the payments required by the award become “due” upon the expiration of the time within which an appeal could have been filed. From that date, therefore, begins the running of the 20-day period within which there may be compliance with the award without exposure to the penalty.
In the case at bar, the appellant made payment within 20 days from the date when the benefits were “due,” and should not be subjected to the penalty. I would reverse the judgment of the superior court and, therefore, I dissent.
I am authorized to state that Presiding Judge Deen, Presiding Judge Birdsong and Judge Sognier join in this dissent.
*519Michael S. Webb, for appellee.