[Cite as State ex rel. Ball v. Indus. Comm., 2017-Ohio-1381.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


The State ex rel. Renee L. Ball,                        :

                 Relator,                               :

v.                                                      :              No. 16AP-446

The Industrial Commission of Ohio                       :           (REGULAR CALENDAR)
and Honda of America Mfg., Inc.,
                                                        :
                 Respondents.
                                                        :


                                            D E C I S I O N

                                       Rendered on April 13, 2017


                 On brief: Hochman, & Plunkett Co., L.P.A., Gary D.
                 Plunkett and Rachael D. Siekman, for relator.

                 On brief: Michael DeWine, Attorney General, and Eric J.
                 Tarbox, for respondent Industrial Commission of Ohio.

                 On brief: Vorys, Sater, Seymour and Pease LLP, and
                 Robert A. Minor, for respondent Honda of America Mfg.,
                 Inc.

                                             IN MANDAMUS
LUPER SCHUSTER, J.
        {¶ 1} Relator Renee L. Ball has filed an original action requesting this court issue
a writ of mandamus ordering respondent Industrial Commission of Ohio to vacate its
order which denied her application for working wage loss compensation and to find that
she is entitled to that award.
        {¶ 2} This matter was referred to a magistrate of this court pursuant to Civ.R.
53(C) and Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate issued the
appended decision, including findings of fact and conclusions of law, recommending this
No. 16AP-446                                                                             2


court deny relator's request for a writ of mandamus. No objections have been filed to that
decision.
       {¶ 3} Finding no error of law or other defect on the face of the magistrate's
decision, this court adopts the magistrate's decision as our own, including the findings of
fact and conclusions of law. In accordance with the magistrate's decision, we deny
relator's requested writ of mandamus.
                                                               Writ of mandamus denied.

                         TYACK, P.J., and DORRIAN, J., concur.
No. 16AP-446                                                                             3


                                        APPENDIX

                          IN THE COURT OF APPEALS OF OHIO

                              TENTH APPELLATE DISTRICT


The State ex rel. Renee L. Ball,              :

               Relator,                       :

v.                                            :                    No. 16AP-446

The Industrial Commission of Ohio             :               (REGULAR CALENDAR)
and
Honda of America Mfg., Inc.,                  :

               Respondents.                   :



                          MAGISTRATE'S DECISION

                               Rendered on January 19, 2017



               Hochman, & Plunkett Co., L.P.A., Gary D. Plunkett and
               Rachael D. Siekman, for relator.

               Michael DeWine, Attorney General, and Eric J. Tarbox, for
               respondent Industrial Commission of Ohio.

               Vorys, Sater, Seymour and Pease LLP, and Robert A. Minor,
               for respondent Honda of America Mfg., Inc.


                                      IN MANDAMUS

         {¶ 4} Relator, Renee L. Ball, has filed this original action requesting this court
issue a writ of mandamus ordering respondent Industrial Commission of Ohio
("commission") to vacate its order which denied her application for working wage loss
("WWL") compensation and ordering the commission to find that she is entitled to that
award.
No. 16AP-446                                                                              4


      Findings of Fact:
      {¶ 5} 1. On April 22, 1999, relator sustained a work-related injury while working
for Honda of America Mfg., Inc. ("Honda"), and her workers' compensation claim has
been allowed for: "contusion right leg; sprain right knee/leg; mononeuritis right leg."
      {¶ 6} 2. As a self-insured employer, Honda paid relator a period of non-working
wage loss ("NWWL") compensation in 2013.
      {¶ 7} 3. On January 20, 2014, relator filed an application seeking an award of
NWWL compensation beginning December 2, 2013.
      {¶ 8} 4. Relator's application was heard before a district hearing officer
("DHO") on February 26, 2014. The DHO denied relator's request finding that her job
search was not conducted in good faith:
             First and foremost, District Hearing Officer does not find
             credible medical evidence that the Injured Worker has
             restrictions which prevent her from returning to her former
             position of employment. The C-140 medical report, filed
             contemporaneous to the requested period of nonworking
             wage loss at issue, was completed by Dr. Trygstad on
             08/21/2013. On this medical report, Dr. Trygstad indicated
             that he last examined the Injured Worker on 01/17/2013,
             which this District Hearing Officer finds was seven months
             prior to Dr. Trygstad completing this C-140 medical report.
             In addition, District Hearing Officer does not find the
             Injured Worker to have conducted a good faith job search for
             suitable employment. From this District Hearing Officer's
             review of the Injured Worker's C-141 Job Search Forms,
             District Hearing Officer finds two-thirds of her job contacts
             were made by telephone and only one-third of her contacts
             were made in person. It appears to this District Hearing
             Officer that the Injured Worker limited herself to
             approximately one personal contact per day and 15 total
             contacts per week. At hearing, this District Hearing Officer
             asked the Injured Worker to give an estimate as to how many
             hours per day she searched for work. She stated, at a
             minimum, "one solid hour". District Hearing Officer finds
             the former position of employment was full time work and
             the Injured Worker's job search was far from being full time
             in nature. Therefore, based on the above findings, this
             District Hearing Officer does not find the Injured Worker to
             have met her burden to establish her entitlement to
No. 16AP-446                                                                       5


             nonworking wage loss benefits under Ohio Administrative
             Code 4125-1-01.

      {¶ 9} 5. Relator's appeal was heard before a staff hearing officer ("SHO") on
April 10, 2014. The SHO modified the prior DHO order and yet still found that relator
failed to establish a good-faith job search and denied the request for NWWL
compensation:
             This Staff Hearing Officer notes that the Injured Worker
             testified, as memorized [sic] by the District Hearing Officer,
             at the District hearing level that she spent a minimum of
             "one solid hour" searching for employment. While at the
             Staff level the Injured Worker testified she spent six to eight
             hours a day searching for employment. As evidence of an
             alleged good faith job search the Injured Worker submitted
             C-141 forms indicating that the week ending 12/07/2013 she
             had 15 contacts for the week, over a three day period of these
             contacts 12 were made by telephone and three were in
             person. For the week ending 12/14/2013 the Injured Worker
             again made 15 contacts eight by telephone, seven in person,
             again over a three day period. For the week ending
             12/21/2013 the Injured Worker again made 15 contacts, six
             by telephone, nine in person, again over a three day period.
             For the last week, ending 12/28/2013 the Injured Worker
             again made 15 contacts this time ten by telephone and five in
             person. Interestingly, of the 65 contacts made none were
             hiring. Further, while the Injured Worker alleges six to eight
             hours a day of involvement in job searches, job searches
             appear to have only been performed three days each week as
             contacts were only made three days per week. Thirty-six of
             these contacts were made by telephone and only 24 in
             person.

             This Staff Hearing Officer does not find this evidence is a
             good faith job search.

             This Staff Hearing Officer finds a good faith job search in
             which the Injured Worker was spending six to eight hours
             each day reviewing potential Employers and applying would
             be evidenced by at least one Employer to which she applied
             actually hiring at the time she applied. Further, 36 telephone
             contacts over a four week period is not evidence of a good
             faith job search during which the Injured Worker is spending
             six to eight hours a day in a job search.
No. 16AP-446                                                                        6


               Given that the Injured Worker contacted 65 Employers, none
               of whom were hiring per the Injured Worker's C-141 forms
               and more than the half of these contacts were made by
               telephone, this Staff Hearing Officer does not find that this
               evidence is a good faith job search. Clearly, the mere fact that
               the Employers were not hiring does not, by itself, negate the
               contacts. The difficulty arises in that the telephone contact
               would [sic] required merely a few minutes of the Injured
               Worker's time rather than hours. As such, these 36 telephone
               contacts are not found to constitute six to eight hours of daily
               job search. The Injured Worker did make 24 in person
               contacts. However, these contacts appear to stand alone as
               the telephone contacts are not found to have been in good
               faith. When the Injured Worker alleges she spends six to
               eight hours a day searching for a [sic] job contacts, this Staff
               Hearing Officer finds 24 contacts with Employers who are
               not hiring does not evidence a good faith job search of a six
               to eight a day basis [sic].

               For the above reasons, the request for payment of non-
               working wage loss for the period of 12/02/2013 through
               12/27/2013 is denied.

               The remainder of the District Hearing Officer's order, not in
               conflict with this order, remains in full force and effect.

      {¶ 10} 6. Relator's further appeal was refused by order of the commission mailed
May 6, 2014.
      {¶ 11} 7. In September 2015, relator's treating physician Richard Donnini, D.O.,
placed restrictions on her which limited her standing and walking, precluded climbing,
and limited her to working 8 hours per day, 40 hours per week.
      {¶ 12} 8. On December 8, 2015, relator filed the request for WWL compensation
which is the subject of this mandamus action. Relator sought WWL compensation from
the period May 16 through September 18, 2015. Relator attached medical records from
Dr. Donnini which included the restrictions he placed on her, paystubs from NC Choices
and Creative Foundations, evidence that she registered with the Ohio Department of Job
and Family Services, a light-duty letter from Honda, an affidavit, and several pages
representing her job search for the relevant period of time.
No. 16AP-446                                                                    7


      {¶ 13} 9. Relator's application was heard before a DHO on February 16, 2016.
The DHO granted in part and denied in part relator's application, stating:
             The District Hearing Officer finds the Injured Worker has
             physical restrictions as set forth in the C-140 Medical Report,
             dated 05/18/2015, by Richard Donnini, D.O. The District
             Hearing Officer finds the Injured Worker returned to
             employment on 05/16/2015, to positions within the physical
             restrictions stated by Dr. Donnini, and has suffered a wage
             loss as a direct result of the industrial injury.

             The District Hearing Officer finds the Injured Worker's
             present earnings are less than the Injured Worker's wages
             were at the time of this industrial injury

             It is the order of the District Hearing Officer wage loss
             compensation is granted from 05/16/2015 through
             07/24/2015. Wage loss compensation may continue upon
             the submission of evidence that documents an ongoing wage
             loss due to the industrial injury and this wage loss is a result
             of a medical impairment that is causally related to the
             industrial injury.

             Further, the District Hearing Officer denies wage loss
             compensation from 07/25/2015 through 09/18/2015. The
             District Hearing Officer finds this Injured Worker was
             employed during this period, however, was not engaged in
             full-time employment and therefore required to provide
             evidence of good faith job searching. The District Hearing
             Officer finds the submitted C-141 Wage Loss Statement for
             Job Search forms do not document sufficient contacts for
             this period. The Injured Worker testified at hearing she
             completes job applications online through websites posting
             job opportunities. The District Hearing Officer does not find
             evidence in the claim file to support the Injured Worker's
             testimony.

             Wage loss is payable at 66 2/3% of the difference between
             the Injured Worker's present earnings and the Injured
             Worker's Average Weekly Wage, not to exceed the Statewide
             Average Weekly Wage.

             Wage loss is authorized no longer then the time period
             specified in R.C. 4123.56.
No. 16AP-446                                                                        8


             This order is based upon the aforementioned documents, in
             addition to the C-141s filed 12/08/2015.

      {¶ 14} 10. Both relator and Honda filed appeals from the DHO order and the
matter was heard before an SHO on March 29, 2016. The SHO vacated the prior DHO
order and denied relator's request for WWL compensation in its entirety, stating:
             This Hearing Officer denies payment of working wage loss
             from 05/16/2015 through 07/24/2015 and from 07/25/2015
             through 09/18/2015.
             This Hearing Officer acknowledges that that [sic] Injured
             Worker, during the periods of working wage loss at issue,
             worked in excess of 40 hours a week, for two employers in
             the attempt to mitigate the wage loss resulting from medical
             impairment that is causally related to the industrial injury.
             Further, this Hearing Officer finds the Injured Worker, in
             September of 2015, obtained employment with just one
             employer allowing her to work 70 hours per week and
             completely eliminate the wage loss.

             Although the Injured Worker should be commended on her
             efforts, this Hearing Officer does not find the Injured Worker
             to have met the requirements of the wage loss rule, in effect
             at the time of the inception of this claim, (Ohio Adm.Code
             4125-1-01) for purpose of establishing her entitlement to
             working wage loss. The aforementioned code section
             requires an Injured Worker's application to be supplemented
             with wage loss statements describing the search for suitable
             employment. The statements are to include the address of
             each employer or contact, the employer's telephone number,
             the position sought, a reasonable identification by name or
             position of the person contacted, the method of contact and
             the result of the contact. An Injured Worker who has not
             returned to suitable employment which is comparably
             paying work, is required to conduct a good faith effort to
             search for suitable employment, which is comparably paying
             work. In evaluating whether an Injured Worker has made a
             good faith effort, attention is given to the number, quality
             and regularity of contacts made by the Injured Worker with
             prospective employers, public and private employment
             services. From this Hearing Officer's review of the Injured
             Worker's C-141 wage loss statement for job search forms
             submitted to the claim, this Hearing Officer finds the Injured
             Worker only made prospective contacts, on average, once
             every five to seven days. This Hearing Officer finds these
No. 16AP-446                                                                            9


             forms are incomplete in that they do not list an address,
             contact name, contact number or any specific information
             with respect to result of the contact. Although this Hearing
             Officer finds the Injured Worker's job efforts led to her most
             recent employment, they did not meet the requirements of
             Ohio Adm.Code 4125-1-01 so as to establish the [sic] her
             entitlement to working wage loss benefits.

      {¶ 15} 11. Relator's further appeal was refused by order of the commission
mailed April 21, 2016.
      {¶ 16} 12. Thereafter, relator filed the instant mandamus action in this court.
Conclusions of Law:
      {¶ 17} For the reasons that follow, it is this magistrate's decision that this court
should deny relator's request for a writ of mandamus.
      {¶ 18} 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
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).
      {¶ 19} 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).
      {¶ 20} Entitlement to wage loss compensation is governed by R.C. 4123.56(B),
which provides:
No. 16AP-446                                                                           10


              Where an employee in a claim allowed under this chapter
              suffers a wage loss as a result of returning to employment
              other than the employee's former position of employment or
              as a result of being unable to find employment consistent
              with the claimant's physical capabilities, the employee shall
              receive compensation at sixty-six and two-thirds per cent of
              the employee's weekly wage loss not to exceed the statewide
              average weekly wage for a period not to exceed two hundred
              weeks.

        {¶ 21} In order to receive workers' compensation, a claimant must show not only
that a work-related injury arose out of and in the course of employment, but, also, that a
direct and proximate causal relationship exists between the injury and the harm or
disability. State ex rel. Waddle v. Indus. Comm., 67 Ohio St.3d 452 (1993). This
principle is equally applicable to claims for wage loss compensation. State ex rel. The
Andersons v. Indus. Comm., 64 Ohio St.3d 539 (1992). As noted by the court in State ex
rel. Watts v. Schottenstein Stores Corp., 68 Ohio St.3d 118 (1993), a wage loss claim has
two components: a reduction in wages and a causal relationship between the allowed
condition and the wage loss.
        {¶ 22} In considering a claimant's eligibility for wage loss compensation, the
commission is required to give consideration to, and to base the determination on,
evidence relating to certain factors, including claimant's search for suitable employment.
The Supreme Court of Ohio has held that a claimant is required to demonstrate a good-
faith effort to search for suitable employment which is comparably paying work before
claimant is entitled to both nonworking wage loss and working wage loss compensation.
State ex rel. Pepsi-Cola Bottling Co. v. Morse (1995), 72 Ohio St.3d 210; State ex rel.
Reamer v. Indus. Comm., 77 Ohio St.3d 450 (1997); and State ex rel. Rizer v. Indus.
Comm., 88 Ohio St.3d 1 (2000). A good-faith effort necessitates claimant's consistent,
sincere, and best attempt to obtain suitable employment that will eliminate the wage
loss.
        {¶ 23} Ohio Adm.Code 4125-1-01(A) defines "suitable employment" and
"comparably paying work" as follows:
              (7) "Suitable employment" means work which is within the
              claimant's physical capabilities, and which may be
No. 16AP-446                                                                   11


             performed by the claimant subject to all physical,
             psychiatric, mental, and vocational limitations to which the
             claimant is subject at the time of the injury which resulted in
             the allowed conditions in the claim or, in occupational
             disease claims, on the date of the disability which resulted
             from the allowed conditions in the claim.

             (8) "Comparably paying work" means suitable employment
             in which the claimant's weekly rate of pay is equal to or
             greater than the average weekly wage received by the
             claimant in his or her former position of employment.

      {¶ 24} Ohio Adm.Code 4125-1-01(C) identifies for claimants the relevant
information which must be contained in an application for wage loss compensation.
Specifically, Ohio Adm.Code 4125-1-01(C)(5) provides:
             (5) All claimants seeking or receiving working or non-
             working wage loss payments shall supplement their wage
             loss application with wage loss statements, describing the
             search for suitable employment, as provided herein. The
             claimant's failure to submit wage loss statements in
             accordance with this rule shall not result in the dismissal of
             the wage loss application, but shall result in the suspension
             of wage loss payments until the wage loss statements are
             submitted in accordance with this rule.

             (a) A claimant seeking or receiving wage loss compensation
             shall complete a wage loss statement(s) for every week
             during which wage loss compensation is sought.

             (b) A claimant seeking wage loss compensation shall submit
             the completed wage loss statements with the wage loss
             application and/or any subsequent request for wage loss
             compensation in the same claim.

             (c) A claimant who receives wage loss compensation for
             periods after the filing of the wage loss application and/or
             any subsequent request for wage loss compensation in the
             same claim shall submit the wage loss statements completed
             pursuant to paragraphs (C)(5)(a), (C)(5)(d) and (C)(5)(e) of
             this rule every four weeks to the bureau of worker's
             compensation or the self-insured employer during the period
             when wage loss compensation is received.
No. 16AP-446                                                                      12


           (d) Wage loss statements shall include the address of each
           employer contacted, the employer's telephone number, the
           position sought, a reasonable identification by name or
           position of the person contacted, the method of contact, and
           the result of the contact.

           (e) Wage loss statements shall be submitted on forms
           provided by the bureau of workers' compensation.

     {¶ 25} Thereafter, Ohio Adm.Code 4125-1-01(D) provides, in pertinent part:
           (D) The claimant is solely responsible for and bears the
           burden of producing evidence regarding his or her
           entitlement to wage loss compensation. Unless the claimant
           meets this burden, wage loss compensation shall be denied.

           ***

           In considering a claimant's eligibility for compensation for
           wage loss, the adjudicator shall give consideration to, and
           base the determinations on, evidence in the file, or presented
           at hearing, relating to:

           (1) The claimant's search for suitable employment.

           (a) As a prerequisite to receiving wage loss compensation for
           any period during which such compensation is requested,
           the claimant shall demonstrate that he or she has:

           (i) Complied with paragraph (C)(2) of this rule and, if
           applicable, with paragraph (C)(3) of this rule [relating to the
           submission of medical evidence];

           (ii) Sought suitable employment with the employer of record
           at the onset of the first period for which wage loss
           compensation is requested. The claimant shall also seek
           suitable employment with the employer of record where
           there has been an interruption in wage loss compensation
           benefits for a period of three months or more; and

           (iii) Registered with the Ohio bureau of employment services
           and begun or continued a job search if no suitable
           employment is available with the employer of record.

           (b) A claimant may first search for suitable employment
           which is within his or her skills, prior employment history,
No. 16AP-446                                                                          13


                and educational background. If within sixty days from the
                commencement of the claimant's job search, he or she is
                unable to find such employment, the claimant shall expand
                his or her job search to include entry level and/or unskilled
                employment opportunities.

                (c) A good faith effort to search for suitable employment
                which is comparably paying work is required of those
                seeking non-working wage loss and of those seeking
                working-wage loss who have not returned to suitable
                employment which is comparably paying work, except for
                those claimants who are receiving public relief and are
                defined as work relief employees in Chapter 4127. of the
                Revised Code. A good faith effort necessitates the claimant's
                consistent, sincere, and best attempts to obtain suitable
                employment that will eliminate the wage loss.

          {¶ 26} Ohio Adm.Code 4125-1-01(D)(1)(c) provides certain relevant factors to be
considered by the commission in evaluating whether claimant has made a good-faith
effort.     Those factors including: claimant's skills, prior employment history, and
educational background; the number, quality, and regularity of contacts made with
prospective employers; for a claimant seeking any amount of working wage loss
compensation, the amount of time devoted to making prospective employer contacts
during the period for which working wage loss is sought, as well as the number of hours
spent working, any refusal by claimant to accept assistance from the BWC in finding
employment; any refusal by claimant to accept the assistance of any public or private
employment agency; labor market conditions; claimant's physical capabilities; any
recent activity on the part of claimant to change her place of residence and the impact
such change would have on the reasonable probability of success and the search for
employment; claimant's economic status; claimant's documentation of efforts to
produce self-employment income; any part-time employment engaged in by claimant
and whether that employment constitutes a voluntary limitation on claimant's present
earnings; whether claimant restricts her search to employment that would require her to
work fewer hours per week than she worked in the former position of employment; and
whether, as a result of physical restrictions, claimant is enrolled in a rehabilitation
program.
No. 16AP-446                                                                           14


      {¶ 27} In this mandamus action, relator argues that the commission abused its
discretion by blindly adhering to technical requirements to find that she did not present
evidence of a good-faith job search. Relator argues that the following facts outweigh any
inadequacies in the documentation she presented: for a period of time she worked 2
jobs in excess of 40 hours per week, for a period of time she worked approximately 70
hours per week, and her job search ultimately led to her most recent employment.
Further, relator points to certain statements contained in the SHO order. After noting
that she worked 2 jobs and is currently working 70 hours per week to eliminate the wage
loss, the SHO stated: "the Injured Worker should be commended on her efforts." After
noting that, despite relator's failure to demonstrate a good-faith job search, she secured
a job, the SHO further stated: "this Hearing Officer finds the Injured Worker's job
efforts led to her most recent employment." Relator asserts the SHO found she had
conducted a good faith search for suitable employment and then denied her WWL
compensation because her paperwork was "less than perfect." (Relator's Reply Brief at
1.)
      {¶ 28} The SHO specifically noted that relator's documentation demonstrated
that she "only made perspective contacts, on average, once every five to seven days * * *
[and] these forms are incomplete in that they do not list an address, contact name,
contact number or any specific information with respect to result of the contact."
      {¶ 29} Relator does not dispute the SHO's finding that she averaged one
perspective employment contact every five to seven days, nor does she contest the
finding that she failed to list the address, contact name, and contact number, or specific
information with respect to several of her contacts.      In 2014, relator's request for
NWWL was denied because she did not demonstrate a good-faith job search. Relator
was familiar with the requirements.     The mere fact that relator ultimately secured
employment thereby demonstrating that her job search was successful, does not, by
default, establish that she made a good-faith effort as demonstrated by her consistent,
sincere, and best attempts to obtain suitable employment to eliminate the wage loss.
The requirements that relator list the company, contact person, telephone number, date,
and method of contact is not, as relator suggests, a "mere technicality." (Relator's Reply
Brief at 6.) This evidence allows her employer and the commission to consider the
No. 16AP-446                                                                        15


quality of her contacts and also allows her employer to verify that she made these
contacts. Relator simply has not demonstrated that the commission abused its
discretion when it found that she failed to establish that she made a good-faith job
search when she made so few contacts and when she failed to present sufficient evidence
regarding those contacts.
      {¶ 30} Based on the foregoing, it is the magistrate's decision that 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).
