State ex rel. Holman v. Dayton Press, Inc.

• Decision Date: 29 May 1984
• Docket Number: No. 83-557,83-557
• Citation: 463 N.E.2d 1243,11 Ohio St.3d 66
• Parties: , 11 O.B.R. 256 The STATE, ex rel. HOLMAN, Appellee, v. DAYTON PRESS, INC. et al., Appellants.
• Court: Ohio Supreme Court

Page 66

11 Ohio St.3d 66

463 N.E.2d 1243, 11 O.B.R. 256

The STATE, ex rel. HOLMAN, Appellee, v. DAYTON PRESS, INC. et al., Appellants.

No. 83-557.

Supreme Court of Ohio.

May 29, 1984.

Appellee, John L. Holman, was allegedly injured in the course of his employment with appellant Dayton Press, Inc. ("Dayton Press"), on January 21, 1981. In his application for benefits, he crossed out the waiver of the physician-patient privilege. Dayton Press, a self-insured employer, was unable to secure his medical records and, therefore, refused to fully certify his claim. The matter was subsequently referred to the Bureau of Workers' Compensation for an allowance hearing. On May 5, 1981, counsel for Dayton Press requested that appellee execute a medical release. Appellee, through his attorney, refused to comply.

On June 16, 1981, Dayton Press filed a motion to take appellee's deposition and that of his treating physician or physicians for the purpose of obtaining his medical records. On June 25, 1981, the Deputy Administrator of the Bureau of Workers' Compensation requested, in a letter to appellee's attorney, that appellee, " * * * comply with our request that you not cross out this paragraph on the applications or we will have no recourse but to not process these altered applications." Appellee's attorney responded by insisting that "the application * * * [was] completed in accordance with Ohio Statutory Law and Supreme Court decisions." On July 6, 1981, the administrator of the bureau retorted suggesting that " * * * you and the Ohio Statutory Law and the Supreme Court can scratch out parts of our application as much as you wish. However, when you do the application will be returned."

Appellant's motion was heard before a district hearing officer who, on October 7, 1981, granted the motion for the requested depositions and subpoena. Appellee appealed this decision to the Dayton Regional Board of Review which, by order dated March 2, 1982, affirmed the decision of the district hearing officer. Appellee took further appeal to the Industrial Commission which refused to hear his appeal by order dated June 16, 1982.

Appellee then filed a mandamus action in the Court of Appeals for Franklin County seeking to compel the appellant commission to consider his claim without requiring him to waive his physician-patient privilege. The court of appeals allowed the writ on February 10, 1983.

The cause is now before this court upon an appeal as of right.

Michael J. Muldoon, Columbus, for appellee.

Smith & Schnacke Co., L.P.A., Edna Scheuer and Thomas A. Jackson, Dayton, for appellant Dayton Press, Inc.

Anthony J. Celebrezze, Jr., Atty. Gen., and Robert J. Kent, Asst. Atty. Gen., for appellant Industrial Com'n.

PER CURIAM.

R.C. 2317.02 states:

"The following persons shall not testify in certain respects:

" * * *

"(B) A physician concerning a communication made to him by his patient in that relation or his advice to his patient but the physician may testify by express consent of the patient * * * or if the patient voluntarily testifies the physician may be compelled to testify on the same subject * * *."

Appellants concede that appellee's medical records are privileged pursuant to R.C. 2317.02(B). They nevertheless argue that the commission had authority for the actions and the order which are the focus of this controversy.

The order from which appellee appealed permitted Dayton Press to depose appellee and his physicians concerning his condition and allowed a subpoena to issue for the purpose of obtaining appellee's medical records. The question presented by this appeal is whether the scope of that order exceeded that of the commission's authority to issue it. We hold that it did.

R.C. 4123.08 and 4123.09 provide the commission with certain discovery powers:

" * * * the industrial commission * * * may * * * compel * * * the production of * * * records, documents, evidence, and testimony." R.C. 4123.08. "In claims filed before the industrial commission by injured employees * * * the commission may cause depositions * * * to be taken * * *." R.C. 4123.09.

While appellants concede that the medical records in question are privileged, they liken the instant situation to that found in State, ex rel. Floyd, v. Court of Common Pleas (1978), 55 Ohio St.2d 27, 377 N.E.2d 794 , where relators sought a writ of prohibition to avoid an order compelling disclosure of certain medical records prior to trial. This court acknowledged the distinction which Civ.R. 16 creates between waiver and disclosure of privileged information. Civ.R. 16 states in pertinent part:

"A court may adopt rules concerning pretrial procedure to accomplish the following objectives:

" * * *

"(6) The exchange of medical reports and hospital records;

" * * *

"The producing by any party of medical reports or hospital records does not constitute a waiver of the privilege granted under Section 2317.02, Revised Code."

Citing Civ.R. 16, this court held that a court may require disclosure of privileged information for limited purposes without requiring waiver of privilege. Appellants argue that this same distinction can be made with regard to a workers' compensation claim. They suggest that a claimant can be required to produce medical records for the limited...