dissenting. The only quarrel I have with the majority opinion is that part of Division 2 which holds that an employer is not entitled to credit against his liability for the payment of compensation on account of wages paid by another employer during the period of disability.
This issue is squarely presented by the pleadings and ruling of the trial court in this case. Both this court and the Supreme Court have made it clear than an employer, while being bound to continue payments under an award, is entitled to credit for wages paid during the period of re-employment. Sears, Roebuck & Co. v. Wilson, 215 Ga. 746, 753 (113 SE2d 611); Complete Auto Transit v. Davis, 106 Ga. App. 369 (126 SE2d 909).
It is clear that the Sanders, Vaughn, and Herron cases, cited in the majority opinion, have absolutely no bearing on the issue here involved for, as was pointed out in the Davis case, supra, in none of these cases was the issue raised as to what credit, if any, the employer may be entitled to have against his liability for the compensation payments on account of wages paid.
Neither is Butler v. Lee, 97 Ga. App. 184 (102 SE2d 498); nor Utica Mut. Ins. Co. v. Pioda, 90 Ga. App. 593 (83 SE2d 627); nor Ocean Acc. &c. Co. v. Hulsey, 105 Ga. App. 479 (125 SE2d 115), all cited in the majority opinion, in point here since none of these cases dealt with wages received by the claimant during the period of disability. The only case cited in the majority opinion which supports the conclusion reached therein is the Louisiana Court of Appeals case.
The reasoning behind the credit for wages paid rule is based on the theory that the employee, though returning to work, was not actually earning his wages and therefore the wages paid him during such re-employment period were actually intended by the employer to be in the nature of a gratuity and in lieu of the payment of compensation.
This rationale has not been followed by the Georgia courts and we have simply stated that the employer is entitled to credit for wages paid during the period of re-employment against his liability for the payment of compensation without making any reference to the question of the intentions of the parties. See Sears, Roebuck & Co., supra, and Davis, supra. Under these *84rulings we must conclude that they stand for the proposition that the credit is to be allowed to the employer regardless of the basis upon which the wages are paid. The effect of these cases is therefore to hold that when the claimant elects to return to employment at a wage equal to or in excess of that which he was receiving at the time of his injury, the employer (though still bound by the award) is entitled to a credit equal to the amount of the award during such periods of re-employment. On this basis there can be no distinction between wages paid by the liable employer or by any other employer, the election to receive wages in lieu of compensation having been made by the claimant.
Thus, it can be seen that this court has greatly enlarged upon the credit principle. Complete Auto Transit v. Davis, 106 Ga. App. 369, supra, and Lumbermen’s Mut. Cas. Co. v. Cook, 69 Ga. App. 131 (25 SE2d 67).
Since Georgia courts have not limited the credit principle to situations where wages paid are in the nature of a gratuity and intended by the parties to be in lieu of compensation, the statement quoted by Judge Eberhardt from Larson’s treatise to the effect that the credit rule never applies to wages received from other employers has no application. Larson’s conclusion in this respect is based on a rationale not engrafted upon the decisions of our appellate courts.
This dissent is not based on sentiment, policy consideration, or a search for a given result but rather upon the only logical conclusion which can be reached from the Georgia case law dealing with this subject.
We are not here concerned with amending or changing the award. This can clearly be done only upon an application to the board by one of the parties. The employer’s liability continues in full force and effect. However, the employer need not make application for a change in condition in order to have the matter of credit for wages paid adjudicated, for as stated in the Davis case, supra: “The credit which the employer may take for wages paid is earned each week and it may be asserted by him at any time thereafter when the employee seeks to enfoi’ce payment of the compensation due and unpaid during the period of re-employment. This may be done by way of an affidavit of il*85legality if judgment and execution have been obtained from the superior court for the accruing and unpaid compensation payments or, prior to judgment we think that a determination of the amount of credits due could be made by the board under an appropriate application for a hearing on the question, pursuant to the provisions of Code § 114-715. This procedure would in no way have the effect of amending, varying, or changing the award, but merely permits the application on the award of that credit which the law permits.” Where the only issue involved is credit for wages paid the principle of res judicata as applied to awards simply does not apply.
If the claimant returns to work for his original employer at the same or higher wage, it is clear under our present law that he is not eligible to receive both the wages and the compensation during the period he is so employed. It is an election which he alone makes. The same rule should apply if he elects to work for another employer. To hold otherwise would be contrary to the true intention of the Workmen’s Compensation Act. Both this court and the Supreme Court still cite with approval the language in Blue Bell Globe Mfg. Co. v. Baird, 61 Ga. App. 298, 300 (6 SE2d 83) which says: “Loss of earning power is the basis for an allowance of compensation. . . The word ‘disability,’ as used in the act means impairment of earning capacity.”
While the employer here could not question his liability under the award in this proceeding, he was entitled to an adjudication as to the amount of credit, if any, he could take against such liability. The trial court therefore erred in striking the answer which attempted to set up such credits.
I am authorized to say that Frankum and Russell, JJ., concur in this dissent.