State ex rel. Workforce Safety v. Altru

• Decision Date: 08 March 2007
• Docket Number: No. 20060107.,20060107.
• Citation: 729 N.W.2d 113,2007 ND 38
• Parties: STATE of North Dakota, by and through WORKFORCE SAFETY, AND INSURANCE Petitioner, Appellant and Cross-Appellee v. ALTRU HEALTH SYSTEMS, Respondent, Appellee and Cross-Appellant.
• Court: North Dakota Supreme Court

729 N.W.2d 113

2007 ND 38

STATE of North Dakota, by and through WORKFORCE SAFETY, AND INSURANCE Petitioner, Appellant and Cross-Appellee v. ALTRU HEALTH SYSTEMS, Respondent, Appellee and Cross-Appellant.

No. 20060107.

Supreme Court of North Dakota.

March 8, 2007.

Jacqueline S. Anderson, Special Assistant Attorney General, Fargo, N.D., for petitioner, appellant and cross-appellee.

Randall S. Hanson (argued), Scott D. Jensen (on brief), and Joel L. Larson (on brief), Camrud, Maddock, Olson & Larson, Ltd., Grand Forks, N.D., for respondent, appellee and cross-appellant.

KAPSNER, Justice.

[¶ 1] Workforce Safety and Insurance ("WSI") appeals and Altru Health Systems ("Altru") cross-appeals from a district court order denying WSI's motion for contempt, permitting WSI to take depositions of a claimant's treating physician and physician's assistant in connection with a fraud investigation, and prohibiting WSI from requiring either the physician or physician's assistant to review videotaped surveillance of the claimant. Because we conclude that the district court did not abuse its discretion under N.D.C.C. § 65-02-11, we affirm.

I

[¶ 2] As a part of a fraud investigation, WSI asked Altru to permit an investigator from WSI's special investigations unit to meet with a claimant's treating physician and physician's assistant. Altru denied WSI's request, and WSI issued an administrative subpoena on July 30, 2005, to take depositions of the claimant's physician and physician's assistant. The physician and physician's assistant resisted the depositions, and WSI thereafter commenced a proceeding in district court under N.D.C.C. § 65-02-11 to enforce the administrative subpoenas.

[¶ 3] On September 1, 2005, the district court issued an "Order on Application for Enforcement of Administrative Subpoena," which allowed WSI to take the depositions of the claimant's physician and physician's assistant without notice to the claimant and required the physician and physician's assistant to appear and answer questions. The order also provided that neither the treating physician nor physician's assistant would be required to review videotaped surveillance "in preparation for appearing for the depositions." The order limited WSI's inquiries to facts relating to the investigation of possible violations of N.D.C.C. § 65-05-33 in the time period covered by WSI's investigation.

[¶ 4] After the district court's September 1, 2005, order, WSI again issued administrative subpoenas under N.D.C.C. § 65-02-11, and depositions were scheduled for the physician and physician's assistant. At the October 27, 2005, deposition of the physician's assistant, WSI's counsel advised the physician's assistant that she was going to be asked questions relating to her treatment of the injured worker and that she would be shown videotaped surveillance and asked some questions relating to the videotape. The physician's assistant refused to view the videotaped surveillance, and her deposition proceeded without her watching the videotape. The deposition of the claimant's treating physician, which also had been scheduled for the same day, was canceled.

[¶ 5] On November 4, 2005, WSI filed a contempt motion with the district court, seeking enforcement of the court's September 1, 2005, order. On February 9, 2006, the district court issued an order denying both parties' requests for sanctions and clarifying its previous order.

2. Neither of the requested deponents, [claimant's treating physician and physician's assistant], shall be required to review any videotape surveillance in the possession of WSI in preparation for or in connection with their depositions. The court specifically finds that it is irrelevant whether the videotape would be shown to the witnesses prior to the deposition or at the time of the depositions, and neither shall be allowed.

3. The Court specifically finds that NDCC Section 65-02-11 allows WSI to be able to examine witnesses and subpoena records, among other things, but that it does not require that the requested deponents become expert witnesses for WSI. To require the treating physician and the physician's assistant to be turned into expert witnesses is beyond the scope of 65-02-11. If WSI requires an expert witness on these issues, it certainly has an outside expert that would be available to not only look at the record that was obtained from Altru but also to review the videotape referred to in its entirety.

4. The Court will stand by its original Order in which it was ordered that [claimant's treating physician and physician's assistant] shall not be required to review videotape surveillance.

[¶ 6] WSI appealed and Altru cross-appealed from the court's February 9, 2006, order.

II

[¶ 7] WSI argues the district court erred in limiting its ability to question the claimant's physician and physician's assistant regarding WSI's videotaped surveillance of the claimant.

[¶ 8] WSI asserts the district court erred as a matter of law in concluding that N.D.C.C. § 65-02-11 does not permit the deponents to become WSI's expert witnesses and ordering that the treating physician and physician's assistant not be required to review videotaped surveillance of the claimant. WSI contends the deponents' potential testimony relates to the issue of whether the claimant's activities were inconsistent with the claimant's statements to his treating physician and physician's assistant and whether the claimant's activities demonstrated a willful misrepresentation of physical ability or condition under N.D.C.C. § 65-05-33.

[¶ 9] Section 65-02-11, N.D.C.C., which authorizes WSI to examine witnesses and issue subpoenas to compel the attendance of witnesses, states:

Except as otherwise provided by this title, process and procedure under this title is governed by chapter 28-32. The organization may make investigation as in its judgment is best calculated to ascertain the substantial rights of all the parties. Any member of the organization, and any person specifically designated by the organization may examine witnesses and records, with or without subpoena, examine, investigate, copy, photograph, and take samples at any pertinent location or facility, administer oaths to witnesses, require the attendance of witnesses without fee whenever the testimony is taken at the home, office, or place of work of those witnesses, and generally to do anything necessary to facilitate or promote the efficient administration of this title. The organization may issue a subpoena to compel the attendance of witnesses and the production of books, papers, correspondence, memoranda, and any other records deemed necessary by the organization. Subpoenas may be enforced by applying to a judge of the district court for an order requiring the attendance of a witness, the production of all documents and objects described in the subpoena, or otherwise enforcing an order. Failure to comply with the order of the district court is contempt as provided in chapter 27-10. The organization shall pay the costs of any medical examination, scientific investigation, medical or expert witness appearance or report, requested or approved by the organization, relating to a claim for benefits, from the organization's general fund.

(Emphasis added.)

[¶ 10] WSI asserts that the phrase "generally to do anything necessary" in N.D.C.C. § 65-02-11 permits it to show the videotaped surveillance to the claimant's treating physician and physician's assistant and compel them to respond to WSI's questions regarding the videotape.

[¶ 11] We have not addressed the scope of judicial inquiry and our standard of review under N.D.C.C. § 65-02-11. In a similar context, however, this Court has explained that the scope of judicial inquiry for applications for enforcement of administrative discovery orders, protective orders, and subpoenas is limited. Medical Arts Clinic, P.C. v. Franciscan Initiatives, Inc., 531 N.W.2d 289, 300 (N.D.1995). The district court's inquiry in proceedings for enforcing an administrative subpoena is limited to whether: "(1) the subpoena is within the statutory authority of the agency; (2) the information sought is reasonably relevant to the inquiry of the administrative proceeding; (3) the subpoena is reasonably specific; and (4) the subpoena is not unduly broad or burdensome." Id. at 300-01 (citations omitted). In Medical Arts Clinic, this Court held:

[J]udicial review of administrative discovery decisions regarding trade secrets, whether in the context of an application for enforcement . . ., an appeal from a final agency decision, or in the limited circumstances where a writ of prohibition is available, is restricted by the doctrine of separation of powers. In those situations, a reviewing court may not insert itself into the agency's administrative role. Rather, the hearing officer, like a trial judge in a civil action, is responsible in the first instance for exercising the wide range of his or her discretion in ruling on discovery issues, . . . and those rulings are subject to judicial review under the narrow standard of abuse of discretion.

Id. at 301.

[¶ 12] Here, the district court was not reviewing an administrative hearing officer's decision relating to administrative discovery, nor has the court refused to order enforcement of WSI's subpoena. Rather, the court issued its initial order enforcing WSI's ex parte, investigatory subpoena, but restricted WSI's use of surveillance videotape. Upon WSI's subsequent motion for contempt, the court issued an order denying WSI's motion and clarifying the court's previous order, restricting WSI from using the videotaped surveillance both before and during the depositions. Both parties have appealed from the court's subsequent "Order on Motion for Contempt." On appeal, WSI asks this Court to reverse the district court's subsequent order "as it pertains to the prohibition of review of videotaped surveillance in connection with the...