concurring specially. The primary problem presented in this appeal is whether or not an employer, against whom there is an unmodified award for the payment of workmen’s compensation, is entitled to credit for wages paid by another employer to the claimant. The specific question was recognized but not answered in Anglin v. St. Paul-Mercury Indem. Co., 106 Ga. App. 395, 400 (126 SE2d 913) and Zurich Ins. Co. v. Cooper, 106 Ga. App. 437 (127 SE2d 165). By no means is its solution clearly shown by either of the cases cited to this effect in the dissent.
*81The matter of credit for wages paid by the same employer was conclusively answered by this court, with all the judges concurring, in Complete Auto Transit v. Davis, 106 Ga. App. 369 (126 SE2d 909). It was there held that where “the wage received during the period of re-employment is equal to or in excess of that which the employee was receiving at the time of his injury the credit will offset all liability [of the original employer] for compensation during that period.” Davis, supra, at 371. The use of the word “liability” was intentional and the word appears throughout the Davis opinion. The liability is that of the original employer and is his legal obligation. To say that an amount paid by one not legally obligated to pay is a “credit” against another’s liability is a novel proposition unsupported by any statutory or case law that we know of or have had called to our attention.
It is interesting to notice that Larson, one of the leading authorities in the compensation field, in his treatise says: “[T]here are two other situations in which the credit rule never applies. One is the receipt of wages from some other employer. Such wages may be relevant to a controversy on whether the employee is suffering from diminished earning capacity, but they have no connection with the present problem, which is whether the payor of wages shall himself be credited with the payment against his own compensation liability. The other situation . . . is that of schedule injuries.” 2 Larson, Workmen’s Compensation § 57.46 (1961 Ed. & Supp.) (footnotes omitted, emphasis supplied).
Furthermore, this situation must be viewed in the context of the res judicata cases. These cases, which are legion, hold that the condition of the claimant is res judicata after a proper award until a change in condition is found under Code Ann. § 114-709. The cases are mentioned and analyzed in Judge Nichols’ opinion here and also in Davis and Anglin, supra. If the res judicata principle remains the law, the “employee’s election” idea advanced in the dissent cannot stand. There is nothing in Davis remotely suggesting that the employee “election” is the basis of the credit granted.
The result reached by Judge Jordan in his dissent has the ap*82parent appeal of not allowing an employee to have his cake and eat it too, something akin to a double recovery for an injury. Frankly, we wish that we could reach the result he advances. We have expressed here our view, not our sentiment. In this area, the courts have been left with no specific statutory guides. The Davis case result represents the outermost limit within the decided authorities that this court can reach. Further to extend Davis in search of a given result would ignore the premise on which it rests. While often “The reason the decisions are not consistent is that policy considerations, not always apparent on the surface, are powerful agents of decision,”1 we are not free here to apply policy considerations to reach the dissent’s result.
The alleviation of any inequity in this decision addresses itself to statutory enactment by the legislature or, possibly, to rule-making by the Board of Workmen’s Compensation. See Code § 114-703(A). The treatment by the courts of a board award like a common law judgment has given rise to a number of situations like this2 which the legislature could easily remedy by giving the board continuing jurisdiction of matters before it. Another possibility is that either the legislature or the board might require that an employee who has an award give the original employer notice when he takes a job with another employer, or in default lose his right to compensation payments. Other solutions may be possible, but none of them are available in this court.
I am authorized to say that Bell and Hall, JJ., concur in this opinion.
Per Douglas, J., dissenting in Malone v. Bowdoin, 369 U.S. 643, 648 (82 SC 980, 8 LE2d 168).
The rule that a change of condition award under Code Ann. § 114-709 cannot be retroactive is an example. See the discussion in Davis, supra, at 373, footnote 2, and Anglin, supra, at 399, footnote 1. The other end of the spectrum is illustrated by St. Paul Fire Ins. Co. v. Bridges, 106 Ga. App. 621 (127 SE2d 699) where it was held that an approved award could not be modified on the grounds of fraud, accident or mistake even within 30 days of the approval because the board lacked jurisdiction. The continuing jurisdiction idea is discussed in this case and said to be a matter for the legislature.