I must respectfully dissent from the decision reached by the majority.
I agree with the judgment rendered by the trial court and would likewise find that appellee's motion to enforce the settlement agreement should be sustained. Contrary to the explanation offered by the majority in support of its decision, I do not find the date in the introductory clause of the settlement agreement to be controlling with regards to the operation of the overpayment provision.
Inasmuch as the settlement agreement itself would have no effect, and would thereby fail to constitute a contract, until executed by all parties, I would agree with the trial court that the overpayment provision was governed by the effective date of the settlement agreement. As noted by the majority, R.C. 4123.65 provides that a settlement agreement does not take effect until thirty days after the settlement is approved by the Industrial Commission. Therefore, no contract existed between the parties in this case until thirty days after the Industrial Commission executed the settlement agreement and any payments received by appellee for purposes of temporary total disability during the interim should not be taxed against her by appellant in fulfillment of the settlement agreement.
In support of my position in this matter is a recent case from the eighth district wherein the injured plaintiff was unable to enforce a settlement reached with the Bureau of Workers' Compensation when the Bureau ultimately failed to approve the settlement agreement. (See, Day v. Hunter Temporary Services,Inc. (May 25, 2000), Cuyahoga App. Nos. 76323 and 76584, unreported). Day represents the reverse of the case at bar and lends credence to the conclusion that without an executed agreement, there can be no contract upon which to enforce a settlement.
I would affirm the judgment rendered by the trial court.
*Page 682______________________________ EDWARD A. COX, PRESIDING JUDGE