State ex rel. Manor Care, Inc. v. Indus. Comm.

[Cite as State ex rel. Manor Care, Inc. v. Indus. Comm., 2016-Ohio-5639.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
The State of Ohio ex rel. Manor Care, Inc., :
Relator, :
v. : No. 15AP-698
Industrial Commission of Ohio and : (REGULAR CALENDAR)
Tonisha S. Parler,
:
Respondents.
:
D E C I S I O N
Rendered on September 1, 2016
On brief: Kegler, Brown, Hill + Ritter Co., LPA,
Randall W. Mikes, David M. McCarty, and Katja Garvey,
for relator.
On brief: Michael DeWine, Attorney General, and Andrew J.
Alatis, for respondent Industrial Commission of Ohio.
On brief: Agee, Clymer, Mitchell & Portman, Douglas P.
Koppel, C. Russell Canestraro, Robert M. Robinson, Eric B.
Cameron and Katherine E. Ivan, for respondent Tonisha S.
Parler.
IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE'S DECISION
LUPER SCHUSTER, J.
{¶ 1} Relator, Manor Care, Inc. ("Manor Care"), initiated this original action
requesting that this court issue a writ of mandamus ordering respondent Industrial
Commission of Ohio ("commission") to vacate its award of temporary total disability
("TTD") compensation to respondent Tonisha S. Parler, and ordering the commission to
No. 15AP-698 2
find that Parler is not entitled to that compensation because she voluntarily abandoned
her employment.
I. Facts and Procedural Background
{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of
Appeals, this matter was referred to a magistrate who issued the appended decision,
which includes findings of fact and conclusions of law. The magistrate concluded that the
commission did not abuse its discretion in finding that Parler did not voluntarily abandon
her employment with Manor Care and awarding her TTD compensation. Thus, the
magistrate recommends this court deny Manor Care's request for a writ of mandamus.
II. Objections
{¶ 3} Manor Care has filed objections to the magistrate's decision. Manor Care
asserts that the magistrate erred in distinguishing this case from State ex rel. Jacobs v.
Indus. Comm., 139 Ohio St.3d 86, 2014-Ohio-1560, and in applying the holdings of State
ex rel. Omnisource Corp. v. Indus. Comm., 113 Ohio St.3d 303, 2007-Ohio-1951 and State
ex rel. Reitter Stucco, Inc. v. Indus. Comm., 117 Ohio St.3d 71, 2008-Ohio-499 to the facts
of this case. Manor Care argues that Jacobs is legally indistinguishable from this case,
and that Omnisource and Reitter are factually distinguishable which renders them
inapplicable here. We find Manor Care's objections to be without merit.
III. Discussion
A. Jacobs is distinguishable
{¶ 4} We agree with the magistrate's finding that Jacobs is distinguishable from
this case. In Jacobs, claimant Wanda Jacobs was injured in September 2006 while
working for Cenveo, Inc. ("Cenveo"), a self-insured employer. Jacobs at ¶ 4. Jacobs'
treating physician indicated that she could return to light-duty work on October 2, 2006,
and Cenveo accommodated those restrictions. Id. at ¶ 4. Jacobs reported to work on that
date but left early, complaining of pain. Id. at ¶ 5. She told Cenveo she intended to
follow-up with her treating physician. Id. at ¶ 5. Two weeks later, Cenveo sent a letter to
Jacobs to inquire as to her status because she had not reported back for work or contacted
Cenveo. Id. at ¶ 6. The letter stated that her employment would be terminated if she did
not contact Cenveo by October 23, 2006. Id. at ¶ 6. Because Jacobs did not contact
Cenveo as requested, Cenveo terminated her employment, effective October 23, 2006. Id.
No. 15AP-698 3
at ¶ 7. In March 2007, Jacobs requested TTD compensation to begin December 30, 2006.
Id. at ¶ 8. The commission concluded that Jacobs had voluntarily abandoned her
employment and that the abandonment barred payment of TTD compensation. Id.
Jacobs filed for a writ of mandamus. Id. at ¶ 9. This court and the Supreme Court of Ohio
denied the writ on the basis that the commission's order, finding that Jacobs was barred
from receiving TTD compensation because she voluntarily abandoned her employment,
was supported by the evidence. Id. at ¶ 19.
{¶ 5} Here, the magistrate distinguished Jacobs, stating: "Unlike Jacobs, who left
work and did not see a doctor for months, claimant saw her doctor immediately. Unlike
Jacobs, whose doctor certified that she was temporarily unable to return to her former
position of employment two months after the day she left, claimant's treating physician
certified that she was unable to return to any work with restrictions on the very day she
left work." (Mag. Decision at ¶ 48.) The magistrate reasoned that these factual
differences render Jacobs inapplicable here.
{¶ 6} Manor Care challenges the magistrate's reasoning as to Jacobs. Manor Care
asserts that the magistrate erred in finding that Parler's "treating physician" certified her
as unable to return to any work. Manor Care argues that Daniel Wills, D.C., who certified
that Parler was unable to return to work beginning March 31, 2014, was not her treating
physician on that date. This argument is unpersuasive because Parler presented to
Dr. Wills on that date for treatment, and she also signed a form on that date requesting
the Ohio Bureau of Workers' Compensation change her physician of record to Dr. Wills.
State ex rel. Findlay Industries v. Indus. Comm., 10th Dist. No. 04AP-256, 2004-Ohio-
6833, ¶ 17 ("[i]t is reasonable to expect that a 'physician of record' is also a 'treating
physician' ").
{¶ 7} Manor Care also argues that the magistrate erroneously determined that
Dr. Wills certified that Parler "was unable to return to any work with restrictions on the
very day she left work." However, on March 31, 2014, Dr. Wills certified that Parler would
be unable to return to work until April 18, 2014. Then on May 13, 2014, Dr. Wills certified
that Parler was temporarily unable to return to work from March 31 to August 31, 2014.
Thus, contrary to Manor Care's argument, Dr. Wills certified that Parler was unable to
return to any work beginning March 31, 2014.
No. 15AP-698 4
{¶ 8} Manor Care further argues that Parler's failure to provide any update
regarding her status led to her voluntary separation from employment. Thus, Manor Care
reasons that, like in Jacobs, Parler's conduct broke the causal relationship between the
industrial injury and the loss of earnings, barring her from TTD compensation. As the
magistrate correctly determined, however, Manor Care's application of the Jacobs case to
this case does not account for the timing of the employment termination relative to the
evidence of Parler's total disability. Parler submitted evidence to the commission
demonstrating that, prior to her conduct leading Manor Care to terminate her
employment, she was unable to return to any work. In Jacobs, there was no evidence that
the claimant was unable to return to any work prior to her discharge. In fact, Jacobs
requested TTD compensation to begin more than one month after her employment was
terminated. Therefore, we reject Manor Care's argument that the magistrate erroneously
distinguished Jacobs from this case.
B. Omnisource and Reitter Stucco are applicable
{¶ 9} We also reject Manor Care's assertion that Omnisource and Reitter Stucco
are inapplicable to the facts of this case. According to Manor Care, those two cases are
distinguishable from this case because Parler was not already receiving TTD
compensation at the time Manor Care terminated her employment. In support, Manor
Care cites the following statement in State ex rel. Hildebrand v. Wingate Transp., Inc.,
141 Ohio St.3d 533, 2015-Ohio-167, ¶ 23:
Furthermore, Pretty Products [v. Indus. Comm., 77 Ohio
St.3d 5, 1996-Ohio-132] does not apply here. In Pretty Prods.
and similar cases that followed, each injured worker was
already receiving temporary-total-disability compensation
when terminated from employment and had therefore already
demonstrated that he or she was disabled as a result of an
industrial injury (which was the cause of a loss of earnings).
Manor Care reasons that, because Parler was not receiving TTD compensation when she
abandoned her employment, the principle that a claimant cannot abandon her
employment while disabled does not apply. We disagree.
{¶ 10} Manor Care's reasoning assumes that the analysis in this case turns on
whether Parler was receiving TTD compensation when Manor Care terminated her
No. 15AP-698 5
employment. While the above-quoted statement from Hildebrand suggests that receipt of
TTD compensation, and not just eligibility for TTD compensation, prior to termination is
a critical fact, viewing that statement within the context of that case and other case law
negates that suggestion. In Hildebrand, the claimant quit his job due to a disagreement
with his employer on the same day that he reported to work with a note from his doctor
restricting him to modified duty. Hildebrand at ¶ 1. Because his departure from work
was not causally related to his injury, he was not entitled to TTD compensation. Id. at
¶ 22.
{¶ 11} Whether a claimant was receiving TTD compensation at the time of the
separation is not the dispositive issue; rather, the issue is whether the claimant was totally
disabled when the discharge occurred. In Omnisource, Reitter Stucco, and Pretty Prods.,
the Supreme Court set forth the principle that "a claimant remains eligible for TTD
compensation if the claimant is still disabled at the time of the claimant's departure from
his employer, regardless of whether the departure is voluntary or involuntary." State ex
rel. Corman v. Allied Holdings, Inc., 10th Dist. No. 10AP-38, 2010-Ohio-5153, ¶ 9. Thus,
even if an employment termination is considered voluntary, "eligibility for temporary
total disability compensation remains if the claimant was still disabled at the time the
discharge occurred." Reitter Stucco at ¶ 10; see Omnisource at ¶ 10 ("[a] claimant who is
already disabled when terminated is not disqualified from temporary total disability
compensation").
{¶ 12} Here, Parler submitted evidence that she was totally disabled beginning
March 31, 2014, weeks before she was terminated for failing to communicate with Manor
Care regarding her status. Thus, as the magistrate determined, evidence in the record
supported the commission's determination that Parler's absence from the workforce was
due to her work-related injury, not her failure to communicate with Manor Care regarding
her absence. Accordingly, we find the magistrate properly applied Omnisource and
Reitter Stucco to the facts of this case.
IV. Disposition
{¶ 13} Following our independent review of the record pursuant to Civ.R. 53, we
find the magistrate correctly determined Manor Care is not entitled to the requested writ
of mandamus. The magistrate properly applied the pertinent law to the salient facts.
No. 15AP-698 6
Accordingly, we adopt the magistrate's decision as our own, including the findings of fact
and conclusions of law contained therein. We, therefore, overrule Manor Care's
objections to the magistrate's decision and deny its request for a writ of mandamus.
Objections overruled;
writ of mandamus denied.
DORRIAN, P.J., and BROWN, J., concur.
No. 15AP-698 7
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
The State of Ohio ex rel. Manor Care, Inc., :
Relator, :
v. : No. 15AP-698
Industrial Commission of Ohio and : (REGULAR CALENDAR)
Tonisha S. Parler,
:
Respondents.
:
MAGISTRATE'S DECISION
Rendered on April 26, 2016
Kegler, Brown, Hill + Ritter Co., LPA, Randall W. Mikes,
David M. McCarty, and Katja Garvey, for relator.
Michael DeWine, Attorney General, and Andrew J. Alatis, for
respondent Industrial Commission of Ohio.
Agee, Clymer, Mitchell & Portman, Douglas P. Koppel,
C. Russell Canestraro, Robert M. Robinson, Eric B. Cameron
and Katherine E. Ivan, for respondent Tonisha S. Parler.
IN MANDAMUS
{¶ 14} Relator, Manor Care, Inc., has filed this original action requesting that this
court issue a writ of mandamus ordering respondent Industrial Commission of Ohio
("commission") to vacate its award of temporary total disability ("TTD") compensation
awarded to respondent Tonisha S. Parler ("claimant"), and ordering the commission to
No. 15AP-698 8
find that claimant is not entitled to that compensation because she voluntarily
abandoned her employment.
Findings of Fact:
{¶ 15} 1. Claimant sustained a work-related injury on March 3, 2014, and her
workers' compensation claim was originally allowed for "lumbosacral joint
sprain/strain."
{¶ 16} 2. Claimant was released to return to work with restrictions as of
March 13, 2014.
{¶ 17} 3. On March 27, 2014, claimant was seen at the emergency room
complaining of persistent low back pain. Claimant was given a prescription for
Percocet, instructed that she could use Robaxin as a muscle relaxant, and that she was
off work "until cleared by occupational health or physical therapy."
{¶ 18} 4. Claimant was seen at Work Health the next day, March 28, 2014.
Claimant was released to return to restricted work, no lifting over five pounds, and no
driving while on pain medication. It was further indicated that an MRI had been
ordered.
{¶ 19} 5. Apparently, claimant returned to work on March 31, 2014; however, she
forgot to bring her work restrictions with her. As such, claimant was sent home after
verbally agreeing that she would return to work the next day with her restrictions.
{¶ 20} 6. That same day, March 31, 2014, claimant saw Daniel E. Wills, D.C., and
he certified that she was unable to return to work before April 18, 2014.
{¶ 21} 7. It is undisputed that claimant did not return to work.
{¶ 22} 8. In a letter dated April 11, 2014, Ada Farley, the human resources
director for relator, wrote to claimant asking her to complete certain paperwork
necessary to apply for a leave of absence. Specifically, that letter provides:
We have made repeated attempts to get a hold of you since
4/1/2014, but have been unsuccessful in reaching you. When
you arrived to work on 3/31/2014, you agree[d] to leave
because we did not have updated restrictions from your
physician. The last records we had were from your visit to
Mt. Carmel East Emergency room on 3/27/2014. During
your visit there, Dr. Kenyon recommended "no work until
cleared by occ. Health or physical therapy." You had a follow
No. 15AP-698 9
up appointment on 3/28/2014 with Work Health the
following day. Those were the restrictions I needed in your
file in order for you to return to work. You stated to me in
person on 3/31/2014 that you had forgot them at home, but
you would bring them in on Tuesday, 4/1/2014, when you
returned to work. We had an agreement that you would work
Tuesday─Friday that week instead of Monday─Thursday. On
4/1/2014 you did not show up to work, nor did you contact
us to tell us you weren't coming in. Due to this we are
offering you a personal LOA. Enclosed you will find the
paperwork necessary to apply for a personal LOA. Your
physician is required to fill out Section C, as your time off is
related to a serious health condition that makes you unable
to perform the essential functions of your job. Please return
the completed forms to HR by 5/2/2014. If we do not receive
your completed paperwork by May 2nd 2014 we will assume
you have resigned your position and will move forward with
the termination process at that time.
{¶ 23} 9. An MRI taken April 22, 2014 showed that claimant had a disc
herniation at L4-5. This condition would later be allowed in her workers' compensation
claim.
{¶ 24} 10. A fax dated May 2, 2014 from Ms. Farley indicated claimant had been
terminated that day because she had failed to provide leave of absence paperwork by the
deadline imposed: May 2, 2014.
{¶ 25} 11. On June 2, 2014, claimant filed a C-86 motion requesting TTD
compensation beginning March 31, 2014. Claimant attached a Medco-14 signed by Dr.
Wills and dated May 13, 2014 certifying that she was temporarily unable to return to
work from March 31 to August 31, 2014.
{¶ 26} 12. An independent medical evaluation was performed by David K. Halley,
M.D. In his July 18, 2014 report, Dr. Halley identified the then allowed condition of
lumbosacral joint sprain/strain, discussed the history and treatment related to the
injury, and provided his physical findings on examination. Dr. Halley opined that no
further treatment was necessary for the allowed condition and that claimant had
reached maximum medical improvement ("MMI").
No. 15AP-698 10
{¶ 27} 13. Claimant's request for TTD compensation was heard before a district
hearing officer ("DHO") on September 10, 2014. The DHO denied the request based on
a finding that claimant had voluntarily abandoned her employment with relator.
{¶ 28} 14. Claimant appealed and the matter was heard before a staff hearing
officer ("SHO") on October 21, 2014. The SHO vacated the prior DHO order and
awarded claimant TTD compensation as follows:
Temporary total disability compensation is granted from
03/31/2014 through 07/17/2014. Disability is based on the
03/31/2014 slip and the 05/13/2014 Medco-14 Physician's
Report of Work Ability from Daniel Wills, D.C. and the
04/01/2014, 05/22/2014, and 07/02/2014 treatment
records from Chiropractic Care Inc.
The allowed condition is found to have reached maximum
medical improvement as of 07/18/2014 based on the
07/18/2014 report from David Halley, M.D., and based on
this temporary total disability compensation based on the
currently allowed conditions is denied from 07/18/2014
through 10/20/2014.
{¶ 29} Thereafter, the SHO addressed relator's voluntary abandonment argument
and rejected it, stating:
The Employer's argument of a voluntary abandonment is not
found persuasive. The 04/11/2014 letter from Ada Farley
documents that the Injured Worker meet [sic] with the
Employer on 03/31/2014 and indicates the issue that led to
termination was her failure to bring in medical evidence of
restrictions as of 04/01/2014 and later. The 05/02/2014 fax
from Ada Farley shows that the termination did not occur
until 05/02/2014. The 03/31/2014 slip and 05/13/2014
Medco-14 form from Daniel Wills, D.C., both indicate that he
removed the Injured Worker from all work as of 03/31/2014
and certified such through 08/30/2014. Since the Injured
Worker was removed from all work and was no longer on
light duty restrictions as of 03/31/2014, 04/01/2014, and
05/02/2014, the holdings in OmniSource Corp. v. Industrial
Commission (2007), 113 O.S.3d 103 and Reitter Stucco,
Inc. v. Industrial Commission, Slip Opinion No. 2008-Ohio-
499, that a person cannot voluntarily abandon a job if they
are totally disabled, are found to apply and no voluntary
abandonment is found.
No. 15AP-698 11
Because the case of Jacobs v. Industrial Commission (2101)
[sic], 139 O.S.3d 86, involved a situation where the Injured
Worker was not removed from all work but was released to
work with restrictions, and in the present case the Injured
Worker was removed from all work, Jacobs is not found to
apply.
{¶ 30} 15. Relator's appeal was refused by order of the commission mailed
November 15, 2014.
{¶ 31} 16. Relator filed a request for reconsideration which was heard before the
commission on February 3, 2015. Ultimately, the commission denied relator's request
for reconsideration and stated that the SHO order remained in full force and effect.
{¶ 32} 17. Following a hearing before a DHO on February 6, 2015, claimant's
claim was additionally allowed for disc herniation at L4-5.
{¶ 33} 18. Relator's appeal was heard before an SHO on March 23, 2015. The
SHO affirmed the prior DHO order and claimant's claim has been allowed for disc
herniation at L4-5.
{¶ 34} 19. Claimant filed a request for TTD compensation.
{¶ 35} 20. Ultimately, claimant's request for TTD compensation was granted
based on the newly allowed condition of disc herniation at L4-5 beginning July 19, 2014
and continuing.
{¶ 36} 21. Relator's subsequent appeal was refused by order of the commission
mailed May 7, 2015.
{¶ 37} 22. Thereafter, relator filed the instant mandamus action in this court.
Conclusions of Law:
{¶ 38} Relator argues that the commission abused its discretion by awarding TTD
compensation to claimant and the commission should have found that claimant
voluntarily abandoned her employment with relator and was, as such, not eligible for
TTD compensation. For the reasons that follow, the magistrate finds that the
commission did not abuse its discretion here.
{¶ 39} The Supreme Court of Ohio has set forth three requirements which must
be met in establishing a right to a writ of mandamus: (1) that relator has a clear legal
right to the relief prayed for; (2) that respondent is under a clear legal duty to perform
No. 15AP-698 12
the act requested; and (3) that relator has no plain and adequate remedy in the ordinary
course of the law. State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28 (1983).
{¶ 40} In order for this court to issue a writ of mandamus as a remedy from a
determination of the commission, relator must show a clear legal right to the relief
sought and that the commission has a clear legal duty to provide such relief. State ex
rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967). A clear legal right to a writ of
mandamus exists where the relator shows that the commission abused its discretion by
entering an order which is not supported by any evidence in the record. State ex rel.
Elliott v. Indus. Comm., 26 Ohio St.3d 76 (1986). On the other hand, where the record
contains some evidence to support the commission's findings, there has been no abuse
of discretion and mandamus is not appropriate. State ex rel. Lewis v. Diamond
Foundry Co., 29 Ohio St.3d 56 (1987). Furthermore, questions of credibility and the
weight to be given evidence are clearly within the discretion of the commission as fact
finder. State ex rel. Teece v. Indus. Comm., 68 Ohio St.2d 165 (1981).
{¶ 41} TTD compensation awarded pursuant to R.C. 4123.56 has been defined as
compensation for wages lost where a claimant's injury prevents a return to the former
position of employment. Upon that predicate, TTD compensation shall be paid to a
claimant until one of four things occurs: (1) claimant has returned to work;
(2) claimant's treating physician has made a written statement that claimant is able to
return to the former position of employment; (3) when work within the physical
capabilities of claimant is made available by the employer or another employer; or (4)
claimant has reached MMI. See R.C. 4123.56(A); State ex rel. Ramirez v. Indus.
Comm., 69 Ohio St.2d 630 (1982).
{¶ 42} Relator argues that the present case is controlled by the Supreme Court of
Ohio's decision in State ex rel. Jacobs v. Indus. Comm., 139 Ohio St.3d 86, 2014-Ohio-
1560. Wanda Jacobs sustained a work-related injury on September 6, 2006 while
working for Cenveo, a self-insured employer. Jacobs was treated at the emergency room
on September 7, 2006, at which time she was released to return to light-duty work as of
October 2, 2006.
{¶ 43} Cenveo accommodated the light-duty work restrictions when Jacobs
returned to work on October 2, 2006; however, Jacobs complained of pain and, after
No. 15AP-698 13
about one hour, indicated that she could not continue. Jacobs told Cenveo that she
intended to follow-up with her doctor.
{¶ 44} On October 17, 2006, Cenveo's human resources manager sent Jacobs a
letter indicating that if they did not hear from her by October 23, 2006, her employment
would be terminated. Jacobs did not contact Cenveo and was discharged effective
October 23, 2006.
{¶ 45} On March 19, 2007, Jacobs filed a motion for TTD compensation
beginning December 30, 2006. The commission denied her request for TTD
compensation on the basis that she had been terminated from her employment on
October 23, 2006 for violating the company's absenteeism policy and failing to accept
the light-duty work offered. The commission concluded that Jacobs had abandoned her
employment and that abandonment barred the payment of TTD compensation.
{¶ 46} Jacobs filed a mandamus complaint. This court and the Supreme Court
both denied Jacobs' request for a writ of mandamus specifically noting that, when
Jacobs left, she failed to present Cenveo with any medical evidence that the position was
beyond her capability. Further, it was specifically noted that Jacobs left after one hour
and indicated she was going to consult with her physician. There was no evidence that
she did so. Instead, Jacobs simply did not return to work, and then requested TTD
compensation beginning December 30, 2006, two months after she was terminated.
{¶ 47} In the present case, claimant was released to return to work with
restrictions on March 31, 2014. When she reported to work that day, she did not bring
her new restrictions with her, but promised to bring them the next day. That same day,
March 31, 2014, claimant saw her doctor and was taken off work until April 18, 2014.
Thereafter, claimant had an MRI which showed that her condition had indeed
worsened.
{¶ 48} Unlike Jacobs, who left work and did not see a doctor for months, claimant
saw her doctor immediately. Unlike Jacobs, whose doctor certified that she was
temporarily unable to return to her former position of employment two months after the
day she left, claimant's treating physician certified that she was unable to return to any
work with restrictions on the very day she left work. The two cases are not similar
factually and the reasoning from Jacobs does not apply here. Where as here, there is
No. 15AP-698 14
some evidence in the record upon which the commission relied indicating that claimant
was unable to return to work at the time she allegedly abandoned her employment. The
commission is permitted to find that her absence from the workplace was, in fact, due to
the work-related injury. Consistent with the decisions in State ex rel. OmniSource
Corp. v. Indus. Comm., 113 Ohio St.3d 303, 2007-Ohio-1951, and State ex rel. Reitter
Stucco, Inc. v. Indus. Comm., 117 Ohio St.3d 71, 2008-Ohio-499, a person cannot
voluntarily abandon a job if they are totally disabled at the time of the alleged
abandonment.
{¶ 49} Finding that there is some evidence in the record on which the
commission could rely to find that claimant's departure from the workforce was related
to her work-related injury, it is the magistrate's decision that the commission did not
abuse its discretion in finding that she did not voluntarily abandon her employment
with relator and awarding her TTD compensation. As such, this court should deny
relator's request for a writ of mandamus.
/S/ MAGISTRATE
STEPHANIE BISCA
NOTICE TO THE PARTIES
Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as
error on appeal the court's adoption of any factual finding or
legal conclusion, whether or not specifically designated as a
finding of fact or conclusion of law under Civ.R.
53(D)(3)(a)(ii), unless the party timely and specifically objects
to that factual finding or legal conclusion as required by Civ.R.
53(D)(3)(b).