1. The Supreme Court of Georgia upon writ of certiorari has reversed this court's judgment rendered September 6, 1972. See 127 Ga. App. 146 (193 SE2d 43), and 230 Ga. 174 (196 SE2d 129). This court must now consider a contended error which it found unnecessary to rule upon in its previous opinion.

2. The defendants contend in their brief that the deputy director's award was erroneously based on Code 114-404, as amended (total incapacity to work) because the evidence showed that the original injury was a specific member injury, governed by Code 114-406, as amended. Since, under the opinion of the Supreme Court of Georgia, the injury for which the present claim was filed is the result of a "new accident," the deputy director correctly made the determination as to which statute was applicable on the basis of the claimant's condition as of the date of the "new accident," which was the date on which the original accident and the continued work thereafter produced a disability. See National Union Fite has. Co. v. Johnston, 122 Ga. App. 332 (177 SE2d 125). It appearing from the deputy director's findings of fact and award that the claimant had not been able to return to work, and hence was temporarily totally incapacitated to work, and that the extent of his disability could not be determined at than time in order to make a specific member injury award under 114-406, the award was properly based on the provisions of Code 114-404, as amended (Ga. L. 1968, pp. 3, 4).

Accordingly, the judgment of the superior court reversing the deputy director's award, must be reversed.

EVANS, Judge, concurring specially.

Since the remittitur of the Supreme Court was filed in this court, the Court of Appeals has rendered a further opinion which reverses the trial court and upholds the deputy director's award. I gladly concur.