State ex rel. Martin v. Connor ( 1984 )

Per Curiam.

The question presented in this cause is whether a retroactive increase in DSS payments gives rise to a recoupable overpayment of DWRF benefits. This court has found that the recoupability of payments made under a mistake of fact depends on the circumstances.

In Indus. Comm. v. Dell (1922), 104 Ohio St. 389, this court did not require the refund of payments made under the good faith but mistaken belief that a woman was a deceased claimant’s widow. Upon discovery of the claimant’s lawful wife (from whom he had never been divorced) the payments were terminated, but the amounts already paid were not recouped.

In contrast, this court ruled in State, ex rel. Weimer, v. Indus. Comm. (1980), 62 Ohio St. 2d 159 [16 O.O.3d 174], that excessive payments made due to a clerical error were recoupable. The distinction lies in the determination of the recipient’s entitlement. In Dell, all parties believed the wrong woman was entitled to the widow’s benefits at the time the payments were made. By contrast, in Weimer the bureau never believed the claimant was entitled to the amount she received, and, in all likelihood, neither did the claimant. In the instant case, as in Dell, all parties believed relator was entitled to the DWRF payments at the time they were made.

R.C. 4123.52 gives respondent broad authority to review and modify past findings and orders. This court stated at page 395 in Dell, supra: “It is well understood that the primary purpose of a continuing jurisdiction is to give a board or tribunal the power to modify or change a judgment or order to meet changed conditions, or to do justice in the light of newly discovered evidence, or to correct an order which was made as the result of fraud or imposition, or an order which would not have been made if certain facts later discovered had then been known to exist. * * *” Having so stated, however, this court did not require that payments made under a mistake of fact be repaid.

No mistake was made with regard to relator’s right and respondent’s duty at the time the DWRF payments in question were made. While respondent has the authority to recoup overpayments, that authority is not unlimited. This court has reasoned that such authority does not extend to payments made and accepted in the good faith belief that they were due. Respondent is without authority to recover the payments made to relator. His attempts to do so constitute an abuse of discretion.

Mandamus will lie where the Industrial Commission has abused its discretion. State, ex rel. Anderson, v. State (1979), 60 Ohio St. 2d 106 [14 O.O.3d 339]. Pursuant to R.C. 4121.121(1) that same standard applies to the respondent. Accordingly, the writ prayed for is allowed.

Writ allowed.

Celebrezze, C.J., W. Brown, Sweeney, Locher, C. Brown and J. P. Celebrezze, JJ., concur. Holmes, J., dissents.