dissenting.
The majority opinion indicates that (a) where an award of the board on a change of condition hearing adjudicates that the claimant’s disability ceases some time previously, this is a retroactive award, but (b) the board cannot compel the claimant to refund any excess received between the date disability ceased and the date of the award, but also (c) although the board may not compel such a refund, the superior court may do so on an action filed there seeking a refund on the theory of money had and received.
Findings (a) and (b) are established by the statutes and cases cited. My concern is whether the superior court can compel payment or repayment of compensation money if the board of workmen’s compensation cannot do so. I do not believe it can. If there is any right in any judicial or quasi judicial entity apart from the board to determine the amount and payment (or refund) of compensation, it must arise either from the Workmen’s Compensation Act itself or from some general statutory or common law origin. But the field of rights and remedies accruing to an employee as a result of an *899employment-related accident has been preempted by the Workmen’s Compensation Act and its jurisdiction is exclusive. "It is likewise well settled that the compensation act covers the entire subject-matter of a claim for injuries by an employee against his employer, and that the remedy given by the act is in lieu of any remedy formerly afforded by an action at common law.” Patterson v. Curtis Pub. Co., 58 Ga. App. 211 (198 SE 102) (1938). "If the petition showed any right against the defendant in favor of the plaintiff [in the superior court], the only remedy for the enforcement of such right, under the terms of the contract, was a proceeding before the Department of Industrial Relations.” Grice v. U. S. Fidelity &c. Co., 187 Ga. 259 (200 SE 700) (1938).
This leaves only the question of whether the Workmen’s Compensation Act itself makes certain exceptions as to which jurisdiction may properly be retained by the superior court. I cannot find any relating to jurisdiction to determine and require return of overpayments. Indeed, it appears to me that jurisdiction is expressly retained in the board by reason of the provisions of Code § 114-709 which read in part: "If an employee’s response evidences disagreement with the contentions of the employer or insurer [to the employer’s change of condition application] the board shall notify the parties of the disagreement and schedule the matter for hearing as provided by law and the compensation previously awarded or agreed upon shall continue until terminated or suspended by award or order of the board.” (Emphasis supplied.)
The board has obviously construed this language as a directive to it to decide whether possibly retroactive payments should be continued or not. Rule 17 of the rules and regulations of the board of workmen’s compensation provides that an employer wishing to terminate payments shall file an application for hearing, and under Rule 17 (f), immediately after the hearing thereon "upon a request for change in condition filed by the employer, the Director or Deputy Director hearing the matter shall issue an interlocutory order either continuing or suspending the payment of compensation pending the issuance of a formal award.”
*900A reading of the award in this case indicates that while the administrative law judge allowed cessation of payment as of the date of hearing (although the award was issued some weeks later) he also found that the employer was in violation of the rules of the board for having ceased payment of compensation prior to the hearing without permission of the board, and levied a penalty of $100 for rule violation, which he had the authority to do, a Form 16 agreement approved by the board being in effect at the time. It might be stated that this is a procedure which has been in effect for a long time. It is true that occasional short-term injustice to an employer may result. It appears to have been the legislative thought that greater injustice might result if employers and insurers were allowed to cease payment at their own whim and prior to adjudication. I think also it was definitely the legislative intent to turn the whole subject of workmen’s compensation claims over to the board, and this means that the superior courts have no jurisdiction, under whatever guise, to decide when or to what extent overpayments or underpayments have been made to the employee.
Neither Hayes v. Lawton, 125 Ga. App. 433 (188 SE2d 149) (1972) nor Woods v. Delta Air Lines, Inc., 237 Ga. 332 (227 SE2d 376) (1976), cited in the majority opinion, does more than reiterate that an award of the workmen’s compensation board unappealed from or affirmed on appeal is res judicata. They do not deal with the legal concept that money paid from an employer to an employee is to be determined by an award of the board, and that when the award is final, so that it cannot be changed retroactively by the board, neither can it be changed retroactively by the superior court.
As pointed out in the motion for rehearing, Code § 114-709 has been changed since the facts dealt with here and now gives the board authority to order repayment of benefits where overpayment is adjudicated to have been made. This, to me, is an additional reason for the argument urged in the dissent; only the board, under statutory authority, has the prerogative to make such an adjudication. The superior courts did not and do not have such original jurisdiction.
*901I would affirm the judgment of the superior court.
I am authorized to state that Presiding Judge Quillian and Judges Shulman and Birdsong join in this dissent.