[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. 

 
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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 
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(“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 
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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 
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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 
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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 
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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 
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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 
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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 
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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. 
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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 
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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. 
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{¶ 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 
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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. 
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{¶ 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 
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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 
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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 
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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.”