[Cite as Ohio Bur. of Workers' Comp. v. Salkin, 2011-Ohio-4260.]


         Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                           JOURNAL ENTRY AND OPINION
                                    No. 96173




           OHIO BUREAU OF WORKERS’ COMPENSATION

                                                          PLAINTIFF-APPELLEE

                                                    vs.

                                 BRETT SALKIN, ET AL.
                                                          DEFENDANTS-APPELLANTS




                                JUDGMENT:
                    AFFIRMED IN PART, REVERSED IN PART,
                              AND REMANDED


                                      Civil Appeal from the
                                Cuyahoga County Common Pleas Court
                                      Case No. CV-728169

        BEFORE: E. Gallagher, J., Boyle, P.J., and S. Gallagher, J.
                                    2

      RELEASED AND JOURNALIZED:           August 25, 2011


ATTORNEYS FOR APPELLANTS

Larry W. Zukerman
S. Michael Lear
Brian A. Murray
Zukerman, Daiker & Lear Co., LPA
3912 Prospect Avenue
Cleveland, Ohio 44115

ATTORNEYS FOR APPELLEE

Mike DeWine
Ohio Attorney General

By: Patsy A. Thomas
Assistant Attorney General
150 E. Gay Street, 22nd Floor
Columbus, Ohio 43215

James A. Barnes
Assistant Attorney General
140 East Town Street
9th Floor
Columbus, Ohio 43215-6001




EILEEN A. GALLAGHER, J.:

      {¶ 1} Brett Salkin (“Salkin”) appeals the decision of the trial court

finding him in contempt of court and ordering him to comply with a

November 24, 2008 subpoena issued by the Bureau of Workers’ Compensation
                                      3

(“BWC”). Salkin argues the trial court erred in ordering him to comply with

the subpoena because it was not validly issued, that the Fifth Amendment’s

protections against self-incrimination, and the Health Insurance Portability

and Accountability Act (“HIPAA”) protect him from releasing the requested

information, and that the court erred in finding him in contempt. For the

following reasons, we affirm in part, and reverse in part.

      {¶ 2} Salkin is a certified health partnership provider for the Ohio

BWC and provides counseling services to injured workers. The BWC is a

state agency responsible for the administration and maintenance of the

workers’ compensation fund. It is empowered by R.C. 4121.15 and 4123.08

to conduct investigations, and among other powers, to issue subpoenas in

conjunction with those investigations. Additionally, R.C. 4121.121and Ohio

Adm.Code 4123-6-45 furnish the BWC with the duty of reviewing and

auditing a provider’s patient and billing records as part of its responsibility

for the management of the bureau. Further, all certified health partnership

providers sign the BWC’s Health Partnership Provider Application and

Agreement, which states as follows:

      “PROVIDER agrees to create, maintain, and retain sufficient records,
      papers, books, and documents in such form to fully substantiate the
      delivery, value, necessity, and appropriateness of goods and services
      provided to injured workers under the Health Partnership Plan (HPP)
      or of significant business transactions, as provided by OAC 4123-6-451.
       PROVIDER further agrees to make such records available for review
      by BWC * * * within 30 calendar days or such time agreed to by the
                                    4

     parties, in accordance with OAC 4123-6-45.”

     {¶ 3} On November 24, 2008, BWC Special Agent Jennifer Murphy

served a subpoena on Salkin requesting documentation of services rendered

including, but not limited to: treatment notes, sign-in sheets, and patient

encounter forms for eleven injured workers serviced between December 1,

2006 thru June 1, 2008.      The subpoena ordered Salkin to provide the

requested documents by December 8, 2008.         At the request of Salkin’s

counsel, he was afforded several extensions of time; however, he never did

provide the documents to the BWC.

     {¶ 4} On June 1, 2010, pursuant to the statutory authority outlined in

R.C. 4121.15, the BWC filed an application to enforce the subpoena in the

Cuyahoga County Court of Common Pleas.          The trial court scheduled a

hearing for December 8, 2010. On the day of the hearing, Salkin failed to

appear.   The court conducted the hearing in his absence and at the

conclusion, ruled from the bench.         The trial court found the BWC’s

application to enforce the subpoena to be well taken and granted the BWC’s

motion. The trial court also found Salkin in contempt of court for failing to

respond to a properly issued subpoena and fined him $250.         The court

ordered Salkin to provide the BWC with the requested documents on or

before December 15, 2010.

     {¶ 5} Salkin appeals, raising the seven assignments of error contained
                                      5

in the appendix to this opinion.

      {¶ 6} Generally, an appellate court applies an abuse of discretion

standard when reviewing a trial      court’s decision to enforce or quash an

administrative subpoena.     Petro v. N. Coast Villas Ltd. (2000), 136 Ohio

App.3d 93, 735 N.E.2d 985. Nevertheless, when a trial court’s discretionary

decision is based on a specific construction of law, that decision should not be

afforded the deference that is usually due to the trial court. Id. It is only

when a trial court’s decision is based on a specific construction of law that an

appellate court reviews the decision under a de novo standard. Id.

      {¶ 7} It is with this standard in mind that we review Salkin’s seven

assignments of error.

      {¶ 8} In his first assignment of error, Salkin argues the trial court

erred in determining that the BWC’s November 24, 2008 subpoena was

validly issued. We find no merit to this argument.

      {¶ 9} The   Ohio    Supreme     Court   has    held   that   under   Ohio

administrative law, a subpoena will be judicially enforced only so long as: (1)

the inquiry is permitted by law, (2) the records sought are relevant to the

matter in issue, and (3) the records’ disclosure will not cause unreasonable

costs and difficulty. State ex rel. Civ. Rights Comm. v. Gunn (1976), 45 Ohio

St.2d 262, 344 N.E.2d 327; Petro.

      {¶ 10} As outlined above, the BWC is a state agency responsible for the
                                      6

administration and maintenance of the workers’ compensation fund. It is

empowered by R.C. 4121.15 and 4123.08 to conduct investigations, and

among other powers, to issue subpoenas in conjunction with those

investigations. Additionally, R.C. 4121.121 and Ohio Admin.Code 4123-6-45

furnish the BWC with the responsibility for reviewing and auditing a

provider’s patient and billing records as part of its responsibility for the

management of the bureau.         Accordingly, Ohio law permits the BWC to

subpoena its patient providers.

      {¶ 11} We next determine whether the documents sought under the

BWC’s November 24, 2008 subpoena are relevant to the matter in issue, and

would not cause Salkin unreasonable costs and difficulty.     While Salkin

argues the BWC’s failure to establish a causal link between Murphy’s

investigation and the records requested, it is not the BWC’s burden to prove

the relevancy and reasonableness of subpoenas it issues; the burden rests

with Salkin. It is clear that when the Ohio Civil Rules of Procedure do not

apply, the burden of proof rests with the party challenging the subpoena.

Davies v. Columbia Gas & Elec. Co. (1938), 68 N.E.2d 571, 578; Petro. Thus,

it is incumbent on this Court to determine whether Salkin met his burden as

to irrelevancy and unreasonable costs and difficulty.

      {¶ 12} In the instant matter, the BWC seeks Salkin’s documentation of

services rendered including, but not limited to treatment notes, sign-in
                                       7

sheets, and patient encounter forms for eleven injured workers serviced

between December 1, 2006 thru June 1, 2008. The BWC is seeking these

records as part of its investigatory, audit, and review process. Salkin has

failed to contest the BWC’s subpoena on the grounds of hardship,

unreasonable costs, and difficulty.          Instead, Salkin claims the Fifth

Amendment’s protection against self-incrimination, and HIPAA protected

him from releasing the requested documents.            While we shall address

Salkin’s arguments relating to the Fifth Amendment and HIPAA separately

in this opinion, we cannot ignore the fact that the BWC requested records

from Salkin as part of a review process that is required by the Ohio Revised

Code. Moreover, by becoming a health partnership provider, Salkin knew

and agreed that the BWC could ask for and review his records.

      {¶ 13} We find that the documents sought are relevant, and that their

disclosure would not cause unreasonable costs or difficulty to Salkin.

      {¶ 14} Salkin’s first assignment of error is overruled.

      {¶ 15} In his second and third assignments of error, Salkin alleges that

the Fifth Amendment privilege against self-incrimination protects him from

releasing his patient files and records, and that the required records

exception to the Fifth Amendment does not apply. We find no merit to these

arguments.

      {¶ 16} Salkin’s   claim   that   his   Fifth   Amendment   right   against
                                      8

self-incrimination protects him from having to disclose the subpoenaed

records is based on the theory that disclosing the records is testimonial in

nature.   However, we agree with the trial court’s conclusion that Salkin’s

production of patient and billing records is not testimonial because the act of

producing the documents is one of surrender, not testimony.

      {¶ 17} The Fifth Amendment applies only to the compelled production of

documents when the party is required to make incriminating testimonial

communication. Fisher v. United States (1976), 425 U.S. 391, 408, 96 S.Ct.

1569, 48 L.Ed. 39. According to the United States Supreme Court, there are

two situations where the act of producing documents in response to a

subpoena can result in testimonial communication:

      “First, the act of production might be testimonial if the act operates as a
      tacit admission that the requested documents exist and that
      subpoenaed party has possession or control of them. Id. Second, the
      act of production might be testimonial in that by producing the
      requested documents, the subpoenaed party admits that the documents
      are those described in the subpoena and thus implicitly authenticates
      the documents’ genuineness. Id.”

Fisher.

      {¶ 18} The Fisher court chose not to formulate any categorical rules to

decide whether a particular act of production would be deemed testimonial in

either of these instances. Instead, the court determined that resolution of

the issue would ultimately turn upon the facts and circumstances presented

by each case. Id. State v. Aronson (1993), 91 Ohio App.3d 714, 718, 633
                                      9

N.E.2d 599, citing Fisher.

      {¶ 19} In finding the subpoenaed party’s production of the documents

was not testimony protected by the Fifth Amendment, the court in Fisher,

held: [t]he existence and location of the papers are a foregone conclusion, and

the taxpayer adds little or nothing to the sum total of the government’s

information by conceding that he in fact has the papers.          “Under these

circumstances by enforcement of the summons ‘no constitutional rights are

touched. The question is not of testimony but of surrender.’” Id. at 411,

citing In re Harris (1911), 221 U.S. 274, 279, 31 S.Ct. 557, 55 L.Ed. 732.

      {¶ 20} Similar to the facts in Fisher, the BWC knows Salkin possesses

the records, as they have been billed by Salkin for services rendered to the

patients identified in the subpoena.        Thus, Salkin’s production of the

requested documents does not constitute a tacit admission that the

documents exist and that they are in his possession. The act of complying

with the subpoena is not one of testimony, but is one of surrender.

Accordingly, we find that the subpoenaed records are not testimonial.

      {¶ 21} Next, Salkin argues that the required records exception to the

Fifth Amendment privileges does not apply in the present case. The United

States Supreme Court adopted the required records exception in Shapiro v.

United States (1948), 335 U.S. 1, 68 S.Ct. 1375, 92 L.Ed. 1787, holding an

entity subject to regulation by an administrative agency cannot claim a Fifth
                                     10

Amendment privilege in records the law requires it to keep.             Before

documents will be considered “required records” pursuant to Shapiro, the

state must establish the following: (1) the requirement that the records be

kept must be essentially regulatory; (2) the records must be of a kind that the

regulated party has customarily kept; and (3) the records themselves must

have assumed “public aspects” that render them at least analogous to public

documents. Grosso v. United States (1968), 390 U.S. 62, 88 S.Ct. 709, 19

L.Ed. 906.

      {¶ 22} In this portion of his appeal, Salkin finds error only with the

third prong of the required records exception test. Salkin suggests that the

BWC failed to provide the court with evidence that the documents were

analogous to public documents. Salkin’s argument is misplaced. Ohio law

makes clear that records that providers are required to keep under

administrative laws have assumed public aspects.       See In re Grand Jury

Subpoena (Underhill) v. United States (C.A.6, 1986), 781 F.2d 64, 68-69; In re

Special Grand Jury Investigation of Workers’ Comp. Fraud (Sept. 30, 1999),

Franklin App. No. 98AP-1362.

      {¶ 23} By virtue of the Health Partnership Provider Application and

Agreement with the BWC quoted above, Salkin specifically consented to

produce such records that he kept regarding these workers’ compensation

claimants.   Further, R.C. 4121.15, 4123.08, and 4121.121 and O.A.C.
                                     11

4123-6-45, as outlined above, make it clear that participation in the

government-sponsored workers’ compensation program subjects the records

in question regarding the workers’ compensation claimants to review by the

BWC. Because the partnership provider is required to furnish the records

for review by various state officials upon request, these provisions render

these records at least analogous to public documents.        See In re Special

Grand Jury Investigation. As the Sixth Circuit found in Underhill:

      “[I]f an individual chooses to begin or continue to do business in an area
      in which the government requires record keeping, he may be deemed to
      have waived any Fifth Amendment protection which would otherwise
      be present in the absence of the record keeping regulation. * * *”

Id. at 70.

      {¶ 24} Thus, we find that under these circumstances the documents in

question have assumed some “public aspects” that render them at least

analogous to

      {¶ 25} public documents, and the third prong of the required records

exception test has been met.

      {¶ 26} Salkin’s second and third assignments of error are overruled.

      {¶ 27} In his fifth and seventh assignments of error, Salkin argues that

exceptions to HIPAA should not apply in the present case.                 More

particularly, in his fifth assignment of error, Salkin argues that the law

enforcement exception to HIPAA should not apply because the BWC did not
                                      12

prove that Special Agent Murphy was a law enforcement official at the time

she issued the administrative subpoena.

      {¶ 28} However, in putting forth his fifth assignment of error, Salkin

fails to cite to any legal authority for his claim that by not establishing

Murphy’s status as a law enforcement officer, the BWC’s subpoena becomes

invalid. An appellate court may disregard an assignment of error pursuant

to App.R. 12(A)(2) if an appellant fails to cite to any legal authority in support

of an argument as required by App.R. 16(A)(7). State v. Martin (July 12,

1999), Warren App. No. CA99-01-003, citing Meerhoff v. Huntington Mtge. Co.

(1995), 103 Ohio App.3d 164, 658 N.E.2d 1109; Siemientkowski v. State Farm

Ins., Cuyahoga App. No. 85323, 2005-Ohio-4295. “If an argument exists that

can support this assigned error, it is not this court’s duty to root it out.”

Cardone v. Cardone (May 6, 1998), Summit App. Nos. 18349 and 18673. We

therefore disregard and overrule Salkin’s fifth assignment of error.

      {¶ 29} Similar to other arguments made by Salkin throughout his

appeal, in his seventh assignment of error, Salkin mistakenly places the

burden of proving the legality of the subpoena with the BWC. Specifically,

the entirety of Salkin’s seventh assignment of error is based on the alleged

failure of the BWC to prove that its subpoena fell within an exception to

HIPAA. However, as stated above, the burden of proof rests with the party

challenging the subpoena. Davies; Petro.
                                         13

      {¶ 30} Accordingly, we must determine whether Salkin proved that the

BWC’s subpoena failed to fit an exception within HIPAA. Salkin’s brief fails

entirely in this matter.       Nonetheless, we agree with the trial court’s

conclusion that the BWC’s subpoena falls within the law enforcement

exception and the workers’ compensation exception to HIPAA.

      {¶ 31} The law enforcement exception to HIPAA provides:

      “A covered entity may disclose protected health information for a law
      enforcement purpose to a law enforcement official if * * * [i]n
      compliance with and as limited by the relevant requirements of * * * an
      administrative subpoena * * * provided that: (1) The information sought
      is relevant and material to a legitimate law enforcement inquiry; (2)
      The request is specific and limited in scope to the extent reasonably
      practicable in light of the purpose for which the information is sought;
      and (3) De-identified information could not reasonably be used.”

45 C.R.F. 164.512(f)(1)(ii)(C)(1)-(3).

      {¶ 32} The workers’ compensation exception to HIPAA provides:

      “A covered entity may disclose protected health information as
      authorized by and to the extent necessary to comply with laws relating
      to workers’ compensation or other similar programs, established by law,
      that provide benefits for work-related injuries or illness without regard
      to fault.”

      {¶ 33} The BWC’s legitimate law enforcement inquiry is statutorily

created by workers’ compensation laws that: (1) permit the BWC to issue

subpoenas to investigate and audit fee bill payments; and (2) require BWC

medical providers to furnish their patient and billing records to the BWC.

See R.C. 4121.15, 4121.121, 4123.08, and O.A.C. 4123-6-45.        The records
                                     14

sought by the BWC are within this authority and it is imprudent for Salkin to

believe that he can provide unsubstantiated services on behalf of the BWC.

Moreover, it is improbable for Salkin, who signed the BWC Health

Partnership Provider Application and Agreement, to think that he can receive

the benefit, or payment from the BWC for services rendered and not comply

with the burden, supplying the BWC with records when requested.

      {¶ 34} The workers’ compensation exception to HIPAA applies equally to

the facts of this case.   Salkin’s disclosure of records to comply with the

BWC’s subpoena would be to the extent necessary to comply with laws

relating to workers’ compensation. Thus, the exception applies.

      {¶ 35} We find that the law enforcement and workers’ compensation

exceptions to HIPAA apply to the instant case. Salkin’s seventh assignment

of error is overruled.

      {¶ 36} In his fourth and sixth assignments of error, Salkin claims the

trial court erred in finding him in indirect civil contempt. More specifically,

in his fourth assignment of error, Salkin argues that the court erred in

finding him in contempt because he did not intend to obstruct the

administration of justice. In his sixth assignment of error, Salkin claims the

court erred when it imposed a $250 fine without first providing him with an

opportunity to purge the contempt. We find merit to Salkin’s sixth

assignment of error.
                                     15

      {¶ 37} Contempt has been defined as the disregard for judicial authority.

 State v. Flinn (1982), 7 Ohio App.3d 294, 455 N.E.2d 691. “It is conduct

which brings the administration of justice into disrespect, or which tends to

embarrass, impede or obstruct a court in the performance of its functions.”

Windham Bank v. Tomaszczyk (1971), 27 Ohio St.2d 55, 271 N.E.2d 815,

paragraph one of the syllabus. When reviewing a finding of contempt, an

appellate court applies an abuse of discretion standard.     See State ex rel.

Ventrone v. Birkel (1981), 65 Ohio St.2d 10, 417 N.E.2d 1249.

      {¶ 38} Contempt may be either direct or indirect.   In re Purola (1991),

73 Ohio App.3d 306, 310, 596 N.E.2d 1140.         In addition, “[c]ontempt is

further classified as civil or criminal depending on the character and purpose

of the contempt sanctions.” Purola at 311. “Civil contempt is designed to

benefit the complainant and is remedial in nature. * * * Thus, an individual

charged with civil contempt must be permitted to appear before the court and

purge himself of the contempt by demonstrating compliance with the court’s

order.”   State v. Miller, Holmes App. No. 02 CA 16, 2003-Ohio-948, ¶28,

citing Purola, supra.

      {¶ 39} Although Salkin challenges the contempt finding on several

bases, we find dispositive his argument that the trial court abused its

discretion by providing no “purge opportunity” upon the finding of indirect

civil contempt. “A sanction for civil contempt must allow the contemnor the
                                     16

opportunity to purge him or herself of contempt.”          O’Brien v. O’Brien,

Delaware App. No. 2003-CA-F12069, 2004-Ohio-5881, ¶68, citing Burchett v.

Miller (1997), 123 Ohio App.3d 550, 552, 704 N.E.2d 636 (additional citations

omitted).

      {¶ 40} In this case, although a contempt hearing was duly conducted,

the sanction provided no purge provision as required. The trial court stated

as follows:

      “So, again, the defendant is found to be in contempt; is ordered to
      comply with the subpoena on or before December 15, 2010; and, again,
      the Courts found him to be in contempt and is fining him $250 plus
      court costs. And also if the defendant fails to comply with the order at
      this point to provide documents by December 15th, then the Court may
      also and will impose a term of local incarceration of up to 30 days, and
      that is until the requested documents have been provided.

      So that is the Court’s decision, and if, again, the defendant provides the
      documents, then the Court will be so notified, or the parties are
      required to notify the Court, and then the action will be concluded at
      that point.”
      {¶ 41} While the BWC argues that the court’s language in the second

paragraph provides Salkin with a purge opportunity, that is not this Court’s

interpretation.   We conclude that the court fined Salkin $250 without

directly providing him with an opportunity to purge the contempt. The trial

court’s language could be interpreted to mean that upon providing the

subpoenaed documents, the trial court would conclude the matter and not

subject Salkin to the 30 days incarceration, not that the $250 fine would go

away as interpreted by the BWC.        In either case, the absence of a clear
                                      17

opportunity to purge the contempt constitutes an abuse of the trial court’s

discretion. The court’s finding of contempt is reversed.

      {¶ 42} Salkin’s sixth assignment of error is sustained.

      {¶ 43} Our analysis of Salkin’s sixth assignment of error renders his

fourth assignment of error moot.

      {¶ 44} The judgment of the trial court is affirmed in part and reversed in

part and remanded to the lower court for further proceedings consistent with

this opinion.

      It is ordered that appellant and appellee share the costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court to carry this

judgment into execution.

      A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.



EILEEN A. GALLAGHER, JUDGE

MARY J. BOYLE, P.J., and
SEAN C. GALLAGHER, J., CONCUR

                                   Appendix

Assignments of Error:

      “I. The trial court erred in finding that the Bureau of Workers’
      Compensation subpoena issued to Appellant Salkin was a valid
                           18

and properly issued subpoena.”

“II. The trial court erred in finding that Appellant Salkin’s
Fifth Amendment right to be free from self-incrimination did
not extend to Appellant Salkin’s subpoenaed patient files and
records.”

“III. The trial court erred in finding that the Bureau of
Workers’ Compensation established the necessary factors for
the required-records exception to apply to Appellant Salkin’s
Fifth Amendment rights.”

“IV. The trial court erred in holding Appellant Salkin in
indirect civil contempt for failing to comply with a Bureau of
Workers’ Compensation subpoena.”

“V.    The trial court erred in finding that Special Agent
Jennifer Murphy was employed as a valid law enforcement
official at the time she issued a Bureau of Workers’
Compensation subpoena to Appellant Salkin.”

“VI. The trial court erred in imposing a fine and court costs on
Appellant Salkin as part of the sanction for holding him in
indirect civil contempt without giving him an opportunity to
purge the contempt.”

“VII. The trial court erred in finding that exceptions to the
Health Insurance Portability and Accountability Act apply and
permit production and disclosure of all records contained in a
patient’s medical file by a medical professional when said
records are subpoenaed by the Bureau of Workers’
Compensation.”
