Seaboard Fire & Marine Insurance v. Smith

Shulman, Judge,

dissenting.

In Pacific Employers Ins. Co. v. King, 133 Ga. App. 458 (211 SE2d 396), this court considered a controlling issue involved in this case. There, the court held that the provision in Code Ann. § 114-709 that compensation under a prior order "shall continue until terminated or suspended by award or order of the board” conveyed the same import as a deleted former provision that a retroactive award " 'shall not affect any compensation actually paid to any employee.’ ” Id., p. 459. The court expressly rejected the contention that the legislature intended for the employer-insurer to recover the amount *902of overpayment attributable to a retroactive finding of a change in condition. This holding in Pacific is authoritative precedent; it cannot be disregarded merely because this case was also decided on an alternative basis sufficient to determine the ultimate issue. See, e.g., Vann v. American Credit Co., 115 Ga. App. 559 (2) (155 SE2d 459).

Perhaps, as the majority has done, our statutory construction in Pacific, should be reexamined. But such reevaluation ought not be done by this court. Pacific has been the law of the state since 1974, and appellee is entitled to rely on it; any reinterpretation addresses itself to the legislature. See Williams v. Ray, 146 Ga. App. 333. See also Mitchell v. State, 239 Ga. 3 (2) (235 SE2d 509).

I am authorized to state that Presiding Judges Deen and Quillian and Judge Birdsong join in this dissent.