[Cite as State ex rel. Johnson v. Indus. Comm., 2014-Ohio-2281.]


                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT


The State of Ohio ex rel. Donte Johnson,               :

                 Relator,                              :

v.                                                     :
                                                                      No. 13AP-558
The Industrial Commission                              :
of Ohio and New Image                                              (REGULAR CALENDAR)
Building Services, Inc.,                               :

                 Respondents.                          :


                                           D E C I S I O N

                                      Rendered on May 29, 2014


                 Shapiro, Marnecheck & Palnik, and Mathew A. Palnik, for
                 relator.

                 Michael DeWine, Attorney General, and Andrew J. Alatis,
                 for respondent Industrial Commission of Ohio.

                                   IN MANDAMUS
                    ON OBJECTIONS TO THE MAGISTRATE'S DECISION
TYACK, J.

        {¶ 1} Relator, Donte Johnson, has filed this action in mandamus seeking a writ to
compel the Industrial Commission of Ohio ("commission") to grant him an award for a
violation of a specific safety requirement ("VSSR").
        {¶ 2} In accord with Loc.R. 13 of the Tenth District Court of Appeals, the case was
referred to a magistrate to conduct appropriate proceedings. The parties stipulated the
pertinent evidence and filed briefs. The magistrate then issued a magistrate's decision
containing detailed findings of fact and conclusions of law, appended hereto.          The
magistrate's decision includes a recommendation that we grant a limited writ of
No. 13AP-558                                                                             2


mandamus which compels the commission to vacate its denial of an award based upon a
VSSR and revisit the merits of the application.
       {¶ 3} Counsel for the commission has filed objections to the magistrate's decision.
Counsel for Donte Johnson has filed a memorandum in response. The case is now before
the court for a full, independent review.
       {¶ 4} The magistrate found that two different sections of the Ohio Administrative
Code potentially applied, Ohio Adm.Code 4123:1-5-07(C) and 4123:5-07(G). The staff
hearing officer ("SHO") had found no section of the Ohio Administrative Code applicable.
       {¶ 5} Counsel for the commission argues in the objections that a vacuum cleaner
is not a hand-held powered tool for purposes of the administrative code where the major
problem is the deteriorated extension cord which had to be plugged directly into the
vacuum cleaner for the vacuum cleaner to be operable.
       {¶ 6} Counsel for the commission also argues that the injury did not occur in a
workshop or factory, but in a school where Donte Johnson was performing cleaning
services.
       {¶ 7} Ohio Adm.Code 4123:1-5-07(C) reads:

              General requirement.

              All hand tools and hand-held portable powered tools and
              other hand-held equipment whether furnished by the
              employee or the employer shall be maintained in a safe
              condition, free of worn or defective parts.

       {¶ 8} The extension cord was hand-held equipment while being carried to the
vacuum cleaner, while being plugged into the vacuum cleaner, and while the vacuum
cleaner was being operated. The extension cord here was not in a safe condition and not
free of worn or defective parts. To that extent, Ohio Adm.Code 4123:1-5-07(C) applies.
       {¶ 9} The SHO who heard this before the commission did not address the issue of
whether working in a school constituted working in a workshop or factory. We agree with
our magistrate's conclusion that the commission should address the issue first.
       {¶ 10} We overrule the objections filed on behalf of the commission. We therefore
adopt the findings of fact in the magistrate's decision. We also adopt the conclusions of
law in the magistrate's decision and with the conclusion that this matter be remanded for
No. 13AP-558                                                                          3


a determination of whether the working environment constituted a workshop or factory
and whether the equipment here was maintained in accordance with Ohio Adm.Code
4123:1-5-07(C). As a result, we grant a limited writ of mandamus to allow the commission
to address the issues surrounding workshops and factories and the issues regarding Ohio
Adm.Code 4123:1-5-07(C).
                                                                  Objections overruled;
                                                                  limited writ granted.

                        SADLER, P.J., and BROWN, J., concur.
No. 13AP-558                                                                           4


                                  APPENDIX

                        IN THE COURT OF APPEALS OF OHIO

                            TENTH APPELLATE DISTRICT


The State of Ohio ex rel. Donte Johnson,    :

             Relator,                       :

v.                                          :
                                                                No. 13AP-558
The Industrial Commission                   :
of Ohio and New Image                                      (REGULAR CALENDAR)
Building Services, Inc.,                    :

             Respondents.                   :




                        MAGISTRATE'S DECISION

                            Rendered on February 20, 2014



             Shapiro, Marnecheck & Palnik, and Mathew A. Palnik, for
             relator.

             Michael DeWine, Attorney General, and Andrew J. Alatis,
             for respondent Industrial Commission of Ohio.


                                   IN MANDAMUS


      {¶ 11} In this original action, relator, Donte Johnson, requests a writ of mandamus
ordering respondent Industrial Commission of Ohio ("commission") to vacate its order
denying his application for an additional award for violation of a specific safety
requirement ("VSSR") and to enter an order granting the application.
Findings of Fact:
No. 13AP-558                                                                           5


      {¶ 12} 1. On March 5, 2012, relator received an electrical shock while employed as
a cleaner for respondent New Image Building Services, Inc. ("employer"). The electrical
shock occurred when relator plugged an extension cord into an electrical outlet in a
building that he was cleaning with an electric portable backpack vacuum. The industrial
claim (No. 12-809128) is allowed for:
             Effects electric current; right skin sensation disturbance.

      {¶ 13} 2. On July 18, 2012, relator filed an application for a VSSR award.
      {¶ 14} 3. The VSSR application prompted an investigation by the Safety Violations
Investigative Unit ("SVIU") of the Ohio Bureau of Workers' Compensation ("bureau").
      {¶ 15} 4. The SVIU investigator conducted a telephone conference with Justin
Shew, the employer's director of environmental, health, safety and compliance/accounts
manager and with Ginger Vallie, the employer's area manager.
      {¶ 16} 5. On October 10, 2012, the SVIU investigator issued a report, stating:
             [Two] Mr. Shew stated New Image Building Services Inc. no
             longer holds the cleaning contract of the building where Mr.
             Johnson's injury occurred. At the time of the injury Mr.
             Johnson was operating a Super Coach, 9.9 AMP electrical
             vacuum and was provided with a means of grounding. The
             electrical cord used with the vacuum was a fifty foot (50')
             sixteen (16) gauge extension cord. The electrical cord involved
             in the incident was removed from the building and discarded
             after the incident.

             [Three] The employer explained at the time of the incident
             Mr. Johnson was vacuuming the first floor hallway next to the
             cafeteria. Ms. Vallie explained she believes multiple extension
             cords were used by Mr. Johnson to save him time when he
             vacuumed, possibly causing the injury to Mr. Johnson. To her
             knowledge Mr. Johnson was not vacuuming the staircase,
             explained Ms. Vallie. It was further stated by Ms. Vallie after
             the incident Mr. Johnson reported to her that there was a
             prong missing from the electrical cord. She was not aware of
             the missing prong prior to the incident, explained Ms. Vallie.

             [Four] New Image Building [S]ervices has equipment
             inspected by cleaners or the site supervisor each Friday.
             Inspections are documented on a monthly basis, stated Ms.
             Vallie. Investigator Luker requested the employer send
             documentation of the monthly inspections via fax or email. As
No. 13AP-558                                                                     6


              of the writing of this report Investigator Luker has not
              received a copy of the monthly inspections. The employer
              stated the equipment was in good working condition and
              there were no prior issues with the electrical cord or the
              vacuum used by Mr. Johnson at the time of his injury. If there
              had been an issue with the electrical cords additional ones
              were kept at the building Mr. Johnson was working at the
              time of the incident or employees could call her at anytime,
              further stated Ms. Vallie.

              [Five] Mr. Johnson's position at the time of the incident was a
              cleaner and his job duties entailed collecting trash, dusting
              and vacuuming * * *. The employer stated Mr. Johnson's
              training consisted of on-the-job training conducted by
              Wallace Williams, and lasted approximately three days. The
              employer further stated Mr. Johnson's training was on-going
              throughout his employment * * *. The employer believes Mr.
              Johnson understood his job duties at the time of his injury.
              Per the employer, at the time of Mr. Johnson's incident he
              was not required to wear personal protective equipment * * *.

              [Six] An affidavit was obtained from claimant Donte Johnson
              on September 12, 2012 * * *. Mr. Johnson stated at the time of
              his injury he was working at the BASF building vacuuming a
              stairwell. There was no outlet in the stairwell so he had to use
              an outlet outside of staircase, stated Mr. Johnson. It was
              further stated by Mr. Johnson as soon as he plugged the
              extension cord in, a surge kicked out and went through his
              right arm * * *. The extension cord he was using was in poor
              condition and missing a ground prong with electrical tape
              wrapped around the cord, stated Mr. Johnson * * *. Mr.
              Johnson stated he reported to management on multiple
              occasions the cords were in poor condition. Johnson stated, it
              appeared management would not correct the issues * * *. Mr.
              Johnson believes the vacuum he used was old but was in
              relatively good condition * * *.

       {¶ 17} 6. As indicated in the SVIU report, the SVIU investigator obtained an
affidavit from relator dated September 12, 2012. The affidavit states:
              [Two] I began working at New Image Building Services
              February 2012 as a cleaner; this was my position at the time of
              my injury. My duties included cleaning and vacuuming.
No. 13AP-558                                                                  7


           [Three] I received on the job training for approximately two
           days and was conducted by my supervisor. I was never trained
           on electrical safety.

           [Four] I was not required to wear any personal protective
           equipment at the time of my incident.

           [Five] At the time of my incident I was working at the BASF
           building on Chargrin BLVD for New Image Building Services.
           I was in the stairwell behind the security desk, but at
           basement level of the staircase. There were no close outlets for
           the electric portable backpack vacuum (brand unknown) in
           the staircase; therefore, I had to use an outlet outside of
           staircase located approximately ten to fifteen steps from the
           lunch room on the left wall (if you[r] back is facing towards
           the lunch room). I plugged the extension cord into the outlet
           and as soon as I plugged it in, with vacuum, a surged [sic]
           kicked out and went through my right arm and I fell back.

           [Six] The extension cord I was using was in poor condition; it
           was missing the ground prong. The cord was not provided
           with a means of grounding. It also had electrical tape wrapped
           around the middle of the cord. This was the best cord
           available to me the day of the incident; the other cords
           available to me were in even worse condition.

           [Seven] We always used different cords depending on what
           was available while we were working. There were past
           experiences when I would plug in an electrical cord and it
           would make a crackle sound.

           [Eight] I told management in the past the cords were not very
           safe to use and not in good working condition. I specifically
           [sic] to Wallace Williams, my first supervisor, and had
           conversations with Doris Satawhite, my last supervisor
           regarding concerns over condition of equipment. I was told if
           equipment is in poor condition you can report it to a
           supervisor. When condition of equipment was reported it
           appeared management would not correct the issues.

           [Nine] The electrical cords were provided by New Image
           Building Services, but they were kept at the Chagrin BASF
           building where I was cleaning. Electrical cords were kept in
           our storage area which was in hallway near lunchroom.
           Electrical plugs were stored inside of a cardboard box located
           in a green utility cabinet.
No. 13AP-558                                                                          8



              [Ten] After my incident the head manager over various
              buildings, Virginia (AKA: Ginger) (last name unknown), came
              in and removed all the other extension cords. She did not
              remove the cord which caused my injury. Mike (Last Name
              Unknown), head maintenance person, used the cord which
              caused my injury as an example of what cords should not be
              used; the cord involved in my incident was discussed at a
              safety meeting March 7, 2012.

              [Eleven] I believe after my incident they added a new outlet in
              the stairwell. After my incident the outlet involved in my
              injury was changed immediate [sic].

       {¶ 18} 7. Attached to the SVIU report as an exhibit are vacuum specifications and
information provided by the manufacturer of the Super CoachVac/Super CoachVac HEPA
that relator was using at the time of his injury.
       {¶ 19} Under the list of specifications, the document states:
              Includes: a 1 1/2' static-dissipating vacuum hose, a 50'
              extension cord and two Intercept Micro Filters.

       {¶ 20} 8. On April 10, 2013, a staff hearing officer ("SHO") heard the VSSR
application. The hearing was conducted via telephone and was recorded and transcribed
for the record.
       {¶ 21} 9. During the April 10, 2013 hearing, the following testimonial exchange
occurred between relator and his counsel:
              Q. * * * [H]ow long had you been working at New Image
              Building Services?

              A. Close to a year.

              Q. And you had used this piece of equipment without incident
              pretty much every day you worked?

              A. Yes.

              Q. Now, it's my understanding according to the
              documentation that was provided by your employer that the
              vacuum cleaner doesn't have a power cord of its own, is that
              correct?
No. 13AP-558                                                                      9


               A. Correct.

               Q. So how would you plug the vacuum cleaner into the wall?

               A. Basically, we had a box of extension cords that was in our
               utility closet, and we would pick one up and attach it to the
               back of one.

               Q. And this is just how the vacuum cleaner was sold; is that
               correct?

               A. Yes.

               Q. Now, the power cords, those were provided by New Image,
               correct?

               A. Correct.

               Q. And the vacuum cleaners obviously could not work without
               the power cords?

               A. Correct.

(Tr. 11-12.)

       {¶ 22} 10. During the April 10, 2013 hearing, relator's counsel stated to the
hearing officer:
               [Mr. Palnik]: And if you look at the material that was provided
               by the employer that was in the investigation packet, it shows
               the type of backpack vacuum that Mr. Johnson was using at
               the time that he was injured. That backpack vacuum is not
               sold with a power cord, okay. There's actually a picture of it.

               And on the second page of the material is a listing of
               miscellaneous equipment that you can purchase along with it,
               and one of those things is a 50 foot, 16 gauge extension cord
               yellow. Well, in this case, it's my understanding, based on the
               material that the employer has submitted, that they didn't buy
               those. It's not in the bill of sale along with the vacuum.

               They chose to use their own power cords to power the
               vacuum, and it's my contention that when you do that, that
               then becomes part of the vacuum, okay, because the vacuum
               cannot work without the power cord.
No. 13AP-558                                                                            10


(Tr. 24-26.)

      {¶ 23} 11. Following the April 10, 2013 hearing, the SHO mailed an order on
May 2, 2013 denying the VSSR application. The SHO's order of April 10, 2013 explains:
               It is the finding of the Staff Hearing Officer that the
               Application for Violation of a Specific Safety Requirement be
               denied for the reason that no specific safety requirement Code
               section cited applies to this injury. The Injured Worker was
               injured plugging an extension cord into a wall socket. He was
               employed as a cleaner and was vacuuming the first floor
               hallway in a building where the Employer had a cleaning
               contract. The Injured Worker was using an extension cord
               that had the third "fat" prong missing and had tape wrapped
               around the cord. He was treated at Metro hospital, by a
               medical doctor and a chiropractic physician and had a
               consultation with a neurologist. The claim has been allowed.
               The Injured Worker has requested an additional award in
               Violation of a Specific Safety Requirement.

               The following sections are alleged to have been violated:

               4123:1-5-07 (C)
               4123:1-5-07 (G)

               4123:1-5-07 is under the workshops and factories code section
               and concerns Hand tools, hand-held portable powered tools,
               other hand-held equipment and portable safety containers.

               4123:1-5-07 (C) is a general requirement that states: "All hand
               tools and hand-held portable powered tools and other hand-
               held equipment whether furnished by the employee or the
               employer shall be maintained in a safe condition, free of worn
               or defective parts."

               This section does not apply because an extension cord is not a
               hand tool and it is not a hand-held power tool or other hand-
               held equipment.

               4123:1-5-07 (G) concerns grounding and states: "All
               electrically powered portable tools with exposed noncurrent-
               carrying metal parts shall be grounded. Portable tools
               protected by an approved system of double insulation, or its
               equivalent, need not be grounded. Where such an approved
               system is employed the equipment shall be distinctively
               marked."
No. 13AP-558                                                                         11



             The Injured Worker was operating a Super Coach/vacuum
             cleaner that is described in a manufacturer's brochure a copy
             of which is in the record as SVIU Exhibit #5. Under Spec the
             brochure states that this vacuum cleaner comes with a static-
             dissipating vacuum hose and a 50' extension cord. However,
             according to the testimony, this accident occurred as a result
             of a faulty extension cord and there was no cord that was a
             part of the vacuum cleaner. The extension cords were
             purchased separately and were attached to the vacuum
             cleaner by the Injured Worker. This particular cited section
             applied to electrical powered portable tools and not extension
             cords.

             It is the finding of the Staff Hearing Officer that the Injured
             Worker has not proven by a preponderance of the evidence
             that either of the cited code sections are applicable or have
             been violated. Therefore, there is no need to consider that it
             has not been established that the Injured Worker was in a
             workshop or a factory when he was injured. Black's Law
             Dictionary defines a workshop and factory as a "room or place
             wherein power driven machinery is employed and manual
             labor is exercised by way of trade for gain or otherwise."

             Based on the above, as well as a careful consideration of all
             evidence in file and at the hearing, the Staff Hearing Officer
             concludes that the Injured Worker has not proven by a
             preponderance of the evidence that the Employer has violated
             a specific safety requirement. Therefore, the Application for
             Violation of a Specific Safety Requirement is denied.

      {¶ 24} 12. Relator moved for rehearing pursuant to Ohio Adm.Code 4121-3-20(E).
      {¶ 25} 13. On June 25, 2013, another SHO mailed an order denying relator's
motion for rehearing. The SHO's order explains:
             It is hereby ordered that the Motion for Rehearing filed
             05/20/2013 be denied. The Injured Worker has not submitted
             any new and relevant evidence nor shown that the order
             issued 05/02/2013 was based on an obvious mistake of fact or
             on a clear mistake of law. Applying the mandate of strict
             construction of the rules in favor of the Employer, no obvious
             or clear mistake of law or fact is found.

      {¶ 26} 14. On June 26, 2013, relator, Donte Johnson, filed this mandamus action.
No. 13AP-558                                                                           12


Conclusions of Law:
       {¶ 27} It is the magistrate's decision that this court issue a writ of mandamus, as
more fully explained below.
       {¶ 28} Chapter 4123:1-5 of the Ohio Adm.Code is captioned "Workshop and
Factory Safety."
       {¶ 29} Ohio Adm.Code 4123:1-5-01(B) is captioned "Definitions." Thereunder, the
following definitions appear:
              (67) "Ground":

              (a) "Ground connection": the equipment used in establishing
              a path between an electric circuit or equipment and earth. A
              ground connection consists of a ground conductor, a ground
              electrode, and the earth which surrounds the electrode.

              (b) "Grounded": connected to earth by a ground connection.

              (c) "Grounded effectively": connected to earth through a
              ground connection or connections of sufficiently low
              impedance and having sufficient current-carrying capacity to
              prevent the building up of voltages which may result in undue
              hazard to connected equipment or to employees.

              (68) "Grounding conductor": a conductor which is used to
              connect the equipment or the wiring system with a grounding
              electrode or electrodes.

       {¶ 30} Ohio Adm.Code 4123:1-5-07 is captioned "Hand tools, hand-held portable
powered tools, other hand-held equipment and portable safety containers." Thereunder,
the following two specific safety rules provide:
              (C) General requirement.

              All hand tools and hand-held portable powered tools and
              other hand-held equipment whether furnished by the
              employee or the employer shall be maintained in a safe
              condition, free of worn or defective parts.

              ***

              (G) Grounding.
No. 13AP-558                                                                              13


              All electrically powered portable tools with exposed
              noncurrent-carrying metal parts shall be grounded. Portable
              tools protected by an approved system of double insulation, or
              its equivalent, need not be grounded. Where such an
              approved system is employed the equipment shall be
              distinctively marked.

                                    Basic VSSR Law
       {¶ 31} It is well-settled that a VSSR award is deemed a penalty to the employer
subject to the rule of strict construction with all reasonable doubts concerning the
interpretation of the safety standard to be construed against the applicability of the
standard to the employer. State ex rel. Watson v. Indus. Comm., 29 Ohio App.3d 354
(10th Dist.1986); State ex rel. Burton v. Indus. Comm., 46 Ohio St.3d 170 (1989).
       {¶ 32} It is also firmly established that the determination of disputed factual
situations as well as the interpretation of a specific safety requirement is within the final
jurisdiction of the commission, and subject to correction in mandamus only upon a
showing of an abuse of discretion. State ex rel. Roberts v. Indus. Comm., 10 Ohio St.3d 1
(1984); State ex rel. Allied Wheel Prods., Inc. v. Indus. Comm., 166 Ohio St. 47 (1956);
State ex rel. Volker v. Indus. Comm., 75 Ohio St.3d 466 (1996).
       {¶ 33} Of course, the commission's authority to interpret its own safety rules is not
unlimited. Strict construction does require that the commission's interpretation be
reasonable. State ex rel. Martin Painting & Coating Co. v. Indus. Comm., 78 Ohio St.3d
333, 342 (1997). The commission may not effectively rewrite its own safety rules when it
interprets them. State ex rel. Lamp v. J.A. Croson Co., 75 Ohio St.3d 77, 81 (1996).
       {¶ 34} Specific safety requirements are intended to protect employees against their
own negligence and folly as well as provide them a safe place to work. State ex rel.
Cotterman v. St. Marys Foundry, 46 Ohio St.3d 42, 47 (1989).
       {¶ 35} The unilateral negligence defense to VSSR liability derives from State ex rel.
Frank Brown & Sons, Inc. v. Indus. Comm., 37 Ohio St.3d 162 (1988), in which an
employer was exonerated from VSSR liability because an employee had removed part of a
scaffold that had been required by a specific safety requirement. State ex rel. Quality
Tower Serv., Inc. v. Indus. Comm., 88 Ohio St.3d 190, 192 (2000).
No. 13AP-558                                                                               14


         {¶ 36} However, a claimant's alleged negligence is a defense only where the
employer has first complied with relevant safety requirements. State ex rel. Hirschvogel,
Inc. v. Miller, 86 Ohio St.3d 215, 218 (1999). A claimant's negligence bars a VSSR award
only where the claimant deliberately renders an otherwise complying device
noncompliant. State ex rel. R.E.H. Co. v. Indus. Comm., 79 Ohio St.3d 352, 355, (1997);
Martin Painting at 339.
                               Ohio Adm.Code 4123:1-5-07(C)
         {¶ 37} In his April 10, 2013 order, the SHO found that Ohio Adm.Code 4123:1-5-
07(C) does not apply "because an extension cord is not a hand tool and it is not a hand-
held power tool or other hand held equipment." On that basis, the SHO held that the
safety rule is inapplicable.
         {¶ 38} Clearly, an extension cord, by itself, is not a hand tool or a hand-held power
tool or other hand-held equipment. But that observation does not render the safety rule
inapplicable.
         {¶ 39} The question for the SHO that he failed to address was whether the
extension cord is an integral part of the vacuum cleaner. Clearly, the extension cord was
an integral part of the vacuum cleaner. The electrically powered vacuum cannot function
without an extension cord that connects the vacuum to an electrical outlet. Therefore, the
reasoning of the SHO is simply incorrect. Clearly, the employer was required, under the
safety rule, to maintain the electrical cord in a safe condition, free of worn or defective
parts.
                               Ohio Adm.Code 4123:1-5-07(G)
         {¶ 40} In his order, the SHO found that Ohio Adm.Code 4123:1-5-07(G) does not
apply because, again, it was found that the electrical cord is not part of the power vacuum.
The SHO points out that the extension cords were purchased separately and were
attached to the vacuum by the injured worker.
         {¶ 41} The SHO's reasoning seems to ignore that it is the extension cord that both
delivers the electrical power to the vacuum and also provides grounding if a three prong
extension cord is used. That the safety rule provides that the power vacuum "shall be
grounded" indicates that the electrical cord is an integral component of the power vacuum
at issue. Clearly, under the safety rule, the employer was required to provide grounding
No. 13AP-558                                                                                15


for the power vacuum. That the electrical cord failed to provide the grounding is a
violation of the safety rule.
       {¶ 42} The magistrate further notes that the SHO further determined that there
was no need to consider the question of whether the injury occurred in a workshop or
factory. The commission has yet to consider that issue.
       {¶ 43} Accordingly, for all the above reasons, it is the magistrate's decision that this
court issue a writ of mandamus ordering the commission to vacate its order denying
relator's VSSR application, and to enter an order, consistent with this magistrate's
decision, that adjudicates the VSSR application.




                                               /S/ MAGISTRATE
                                               KENNETH W. MACKE




                                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).
