Ohio Bur. of Workers' Comp. v. Salkin
2011 Ohio 4260
Ohio Ct. App.2011Background
- Salkin appeals a trial court contempt finding and order to comply with a November 24, 2008 BWC subpoena seeking documents for 11 injured workers.
- BWC is empowered by RC 4121.15, RC 4123.08 and related provisions to investigate, issue subpoenas, and review provider records.
- The subpoena sought treatment notes, sign-in sheets, and patient encounter forms from December 1, 2006 to June 1, 2008 with a December 8, 2008 deadline; counsel obtained extensions but Salkin never produced.
- On June 1, 2010, BWC filed to enforce the subpoena in Cuyahoga County Court of Common Pleas; hearing was set for December 8, 2010, Salkin failed to appear, and the court found the subpoena enforceable, finding contempt and imposing a $250 fine and a December 15, 2010 document-production deadline.
- Salkin contends the subpoena was invalid, that Fifth Amendment and HIPAA protections apply, and that the contempt finding was improper; the court affirms in part, reverses in part, and remands.
- The court addresses assignments of error related to subpoena validity, Fifth Amendment applicability, HIPAA exceptions, contempt findings, and whether Murphy was a law enforcement officer.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of the subpoena | Salkin argues the subpoena was invalidly issued | BWC contends the subpoena was within statutory authority | Subpoena valid and properly issued |
| Fifth Amendment protection and production of records | Fifth Amendment protects patient files; records production is testimonial | Production is not testimonial and falls within exceptions | Production is not testimonial; required records exception applies and HIPAA issues addressed |
| HIPAA exceptions (law enforcement and workers’ compensation) | HIPAA exemptions do not apply unless proven Murphy status as law enforcement; other exceptions unknown | HIPAA exemptions apply to law enforcement and workers’ compensation contexts | HIPAA law-enforcement and workers’ compensation exceptions apply to the subpoena |
| Contempt and purge opportunity | Contempt sanction should permit purge; no purge opportunity was provided | Contempt supported by evidence and purge not required | Contempt finding reversed for lack of purge opportunity; remanded for further proceedings with purge option |
Key Cases Cited
- State ex rel. Civ. Rights Comm. v. Gunn, 45 Ohio St.2d 262 (1976) (subpoena enforcement requires relevance and reasonable scope)
- Petro v. N. Coast Villas Ltd., 136 Ohio App.3d 93 (2000) (abuse of discretion standard for enforcement of subpoenas (not here))
- Fisher v. United States, 425 U.S. 391 (1976) (testimony vs. surrender in document production)
- In re Harris, 221 U.S. 274 (1911) (production signifies surrender, not testimony)
- Shapiro v. United States, 335 U.S. 1 (1948) (required records doctrine for regulatory records)
- State v. Aronson, 91 Ohio App.3d 714 (1993) (context of testimonial vs. non-testimonial production)
- In re Grand Jury Subpoena (Underhill), 781 F.2d 64 (1986) (public aspects of records render them analogous to public documents)
- In re Special Grand Jury Investigation of Workers’ Comp. Fraud, Franklin App. No. 98AP-1362 (1999) (public aspects of records under workers’ comp review)
- Davies v. Columbia Gas & Elec. Co., 68 N.E.2d 571 (1938) (burden on challenger of subpoenas when rules not applicable)