dissenting.
The award of the board, Chairman Mallard dissenting, stated in part: "a. Charles E. Redding is an employer with sufficient employees — outside of claimant — to be subject to the Workmen’s. Compensation Act of Georgia. The Hartford Insurance Group insures Charles E. Redding under a standard form workmen’s compensation policy for any exposure Charles E. Redding has under the Workmen’s Compensation Act. On October 13,1976 claimant Voyles and Charles Edward Stone were running siding and cornice for Charles E. Redding at Preston Lake on a club house. For this work claimant Voyles and Stone jointly received a payment of $25.00 per square for siding installed and $1.00 per running foot of cornice installed. From any payment made to claimant Voyles and Charles Stone by Charles E. Redding a sum of 4 1/2 cents for each dollar was deducted for the stated purpose of workmen’s compensation coverage. Claimant Voyles and Charles Stone had been working for Redding for approximately three years and during the first year and a half Redding would deduct 3 1/2 cents from each dollar payment due for workmen’s compensation coverage and thereafter he started deducting 4 1/2 cents for each dollar. There was no written contract for the work which was being performed on October 13, 1976. There *522were no other deductions made from payments due claimant Voyles and Stone other than the 4 1/2 cents per dollar for workmen’s compensation coverage. Up to the date of the injury on October 13, 1976 claimant Voyles had earned $12,963.00 performing this type work for Charles Redding, d. After carefully considering the relative nature of work claimant Voyles and Charles Edward Stone were performing for Charles E. Redding and the fact that Redding had been making a deduction from the payments due Voyles and Stone for the specific purpose of providing workmen’s compensation coverage to Voyles and Stone, I conclude and find as fact that Charles E. Redding is estopped to deny that he is the employer of Grady Voyles for compensation purposes. Therefore, I conclude and find as fact Grady Voyles sustained injury by accident arising out of and in the course of his employment with Charles E. Redding on October 13, 1976. Based on the fact that Voyles had earned $12,963 in 1976 to the date of his injury I find his average weekly wage is $316.17 per week. Redding had notice of Voyles’s injury within thirty days. e. Having made a determination that Redding is the employer of Grady Voyles for compensation purposes, I find that Hartford Insurance Group also liable as it insures Charles E. Redding for his exposure under the Workmen’s Compensation Law of Georgia.”
Code Ann. § 114-607 (Code § 114-607 as amended Ga. L. 1933, pp. 184, 185) provides in part: "an insurer who issues a policy of compensation insurance to an employer not subject to this Title shall not plead as a defense that the employer is not subject to the Title; and are insurer who issues to an employer subject to this Title a policy of compensation insurance covering an employee or employees ordinarily exempt from its provisions shall not plead the exemption as a defense.” It is clear that the board held that Code § 114-607 applied because Redding withheld certain sums for payment of Workers’ Compensation insurance premiums from the money that he paid Voyles for his services. That was an erroneous theory of law. For Code § 114-607 to apply it must be shown not that an employer deducted for the payment of the premiums but that a policy of insurance was actually *523issued to the employer which covered the person making the claim for compensation.
Since the award was based on an erroneous theory of law, I respectfully dissent from the majority opinion affirming the award.
I am authorized to state that Judge Shulman and Judge Birdsong join in this dissent.