The opinion
H. Brown, J.,
dissenting. The majority appears to characterize the employer’s payment of the disability'compensation to the employee from January 12, 1982 through August 17, 1982 as a clerical mistake entitling the employer to a setoff. The facts, however, mandate the conclusion that the error is a mistake of law which precludes recoupment from the employee. Therefore, I dissent.
The relevant facts are: (1) the district hearing officer ordered the employer to pay temporary total compensation, (2) the employer made the payments, and (3) no clerical error was shown. The employer failed to produce evidence showing that it did not intend to pay the employee the money. It follows that the employer made the payments because it felt obligated to do so. If a mistake was made, it concerned the obligation to pay and, therefore, was a mistake of law.
The majority opinion fails to state what the mistake was that prompted the employer to make the disputed payments. How, one wonders, can the majority resolve the effect of a mistake without first identifying it?
Recovery is not available from the claimant when the claimant has been paid by reason of a mistake of law. See State, ex rel. Martin, v. Connor (1984), 9 Ohio St. 3d 213 , 9 OBR 523, 459 N.E. 2d 889 ; State, ex rel. Westvaco Corp., v. Indus. Comm. (May 31,1983), Franklin App. No. 82AP-784, unreported; see, also, Indus. Comm. v. Dell (1922), 104 Ohio St. 389 , 135 N.E. 669 .
Even if the payment by the employer could be characterized as a mistake of fact, the majority’s attempt to impute knowledge of the error to the employee takes us to the fringe of absurdity. The cornerstone of the majority’s decision is this: “The present appellee, in all likelihood, never had a good faith belief of entitlement since the employer’s appeal was filed prior to the disbursement of funds. We therefore find Weimer to be controlling.” (Emphasis added in part.) The case should be resolved on the record, not upon unsupported “in all likelihoods.”
In the case before us, the employer believed that it owed the money. Otherwise it would not have made the payments. No evidence supports the notion that the employee knew, at the time payments were received, that he was not entitled to them. Indeed, the district hearing officer had held in his favor. If the employer, a self-insurer who deals with industrial claims on a regular basis, thought itself, obligated to pay, how can the employee be held, without evidence, to a greater knowledge? The authority to recoup overpayments does not extend to payments made and accepted in a good faith belief that they were due. State, ex rel. Martin, supra, at 214, 9 OBR at 525, 459 N.E. 2d at 891 .
The majority, in reversing a unanimous decision by the court of appeals, has ignored the facts and the law.
Sweeney and Douglas, JJ., concur in the foregoing dissenting opinion.