dissenting. I concur in the holding that the board has no jurisdiction over medical coverage in excess of the statutory $5,000 and therefore cannot adjudicate subrogation rights in excess of this limit.
While the majority opinion states the judgment is affirmed, the language of Divisions 2, 4 and 5 appears to reverse that part of the court’s judgment which affirmed the board’s directive that the claimant refund to the insurer the sums previously received in compensation and medical expenses. It is to this language that I dissent.
The opinion says the board is without authority to alter the finality of its previous judgment that compensation was payable. The action of the board did not revoke its previous decision. It merely exercised its authority to enforce subrogation rights which are clearly provided in Code Ann. § 114-403. The board has the authority to decide and enforce subrogation issues arising under the Act. See Travelers Ins. Co. v. Houck, 118 Ga. App. 154, 156 (162 SE2d 781), cert. den. 118 Ga. App. 867. The majority opinion seems to hold that the board has no jurisdiction over Code Ann. § 114-403. This is difficult to understand when Code § 114-715 provides: "All questions arising under this Title, if not settled by agreements of the parties interested therein, with the approval of the State Board of Workmen’s Compensation, ^shall be determined by the members, except as otherwise herein provided.”
To hold that the claimant cannot be ordered to refund amounts already received from the insurer even though he has also recovered from the tortfeasor is to nullify the real purpose of Code Ann. § 114-403 as defined by Georgia court decisions. The Supreme Court has held: "The real purpose of the provisions in the workmen’s compensation law for giving to the employer the right of subrogation has been described as a means for recouping the *474employer’s loss and to prevent a double recovery by the employee and to do substantial justice.” Southern R. Co. v. Overnite Transportation Co., 223 Ga. 825, 830 (158 SE2d 387). This court has held, quoting 2 Larson’s Workmen’s Compensation Law 166-167, §71.20: "It is . . . elementary that the claimant should not be allowed to keep the entire amount both of his compensation award and of his common law damage recovery. The obvious disposition of the matter is to give the employer so much of the negligence recovery as is necessary to reimburse him for his compensation outlay, and give the employee the excess. This is fair to everyone concerned: the employer, who, in a fault sense, is neutral, comes out even; the third person pays exactly the damages he would normally pay, which is correct, since to reduce his burden because of the relation between the employer and the employee would be a simple windfall to him which he has done nothing to deserve; and the employee gets a fuller reimbursement for actual damages sustained than is possible under the compensation system alone.” Travelers Ins. Co. v. Houck, supra, p. 155. Subrogation normally arises when the person seeking it has made a "payment.” Adel Banking Go. v. Parrish, 84 Ga. App. 329, 332 (66 SE2d 150); First Nat. Bank v. American Surety Co., 71 Ga. App. 112, 117 (30 SE2d 402).
Further, to hold that there can be no refund for amounts already received will induce workmen’s compensation insurers to delay as long as possible, by means of any and every technicality, the payment of benefits when they know they have, in effect, no subrogation. The result will be the negation of a process which was designed to afford speedy relief to an injured worker.
In my opinion, neither the board nor the superior court is in error.
I am authorized to state that Judge Eberhardt concurs in this dissent.