Synopsis: Last week marked the passing of Illinois Appellate Court Justice John J. McCullough.

Editor’s comment: Writing a news article about the passing of this distinguished Justice for a WC business observer and court-watcher is, to say the least, challenging. Justice McCullough proudly served his country in the U.S. Army (1955-57). Following four years in private practice, he was elected county judge in 1962 and Chief Judge of the 11th Judicial Circuit in 1974 and served in that position until his election to the Fourth District Appellate Court in 1984, where he served for the past 28 years.

In addition to his regular judicial duties, Justice McCullough served 22 years on the Workers' Compensation Division of the Illinois Appellate Court and acted as the Presiding Justice of the five-member panel for each of those years. Justice McCullough was the longest serving judge in Illinois history, serving 50 years on the bench.

Our issue with writing about his passing is he was one of the folks who participated in numerous IL WC Appellate Court rulings considered by Illinois business leaders to be anti-business and mildly to wildly pro-labor. At present, we consider current contested WC appellate rulings to have a ratio of 20-1 or higher for Illinois labor. That said, we assure our readers Justice McCullough was professional, business-like and very honest. He was also the leader of a crucially important judicial panel that led the Illinois workers’ compensation system to where it needed lots and lots of reforms to bring it to remain the fourth most expensive WC system for employers in the entire country. It is our hope the next presiding justice of this important Appellate panel steers the members of the Court closer to the mainstream and takes on a focus of fair/reasonable benefits paid to injured workers by cost-conscious Illinois business and government bodies.

For the two decades we have been publishing this Update, KCB&A repeatedly and respectfully criticized the appellate panel Justice McCullough headed for any number of issues we felt were unusual and deserving of comment:

This WC appellate panel used to issue many of its decisions in secret. In any ruling of a controversial nature, the Appellate Court, Workers’ Compensation Division could follow Illinois Supreme Court Rule 23 and “non-publish” their rulings, keeping them out of the eyes of the public. Most important, such rulings were kept out of the eyes of the practicing bar. This was supposed to only apply when their ruling was mundane and routine—turns out lots and lots of critically important and lengthy rulings were “non-published.” In our opinion, no one on other side of the bar could tell why or when that might happen.

What the “regulars” or lawyers who practiced at the IWCC a lot learned to do was to quietly pass along the secret rulings to each other to allow them to know what the members of the Appellate Court were thinking when faced with an important situation. We also consider it amusing to see the Illinois State Bar Ass’n would “publish” articles analyzing “non-published” Appellate Court decisions; in our view, such publications would openly contradict the Justices’ determination their ruling was to be kept from “publication.” What is also odd is non-published rulings are now posted on the Appellate Court’s website, making them “published but non-published” rulings!

Another odd proclivity of the rules governing the Appellate Court, Workers’ Compensation Division was the members’ singular ability to decide when to make the panel’s rulings “appealable.” If you aren’t sure, the panel continues to have that power, although the Supreme Court rules now require not just one but two of the panel members to certify their ruling for further appeal. We always felt this ability presented was to display a pro-labor bias to the rulings of the panel. What one would see was pro-labor rulings awarding benefits left to be non-appealable by the panel while any defense ruling denying benefits would be certified for further appeal in the hope that our highest Court might reverse. We remain chagrined to remember this Appellate panel didn’t have to certify rulings like Sisbro and Twice Over Clean where they wrote brilliant decisions initially denying benefits. We also will always be amazed to note the panel certified the Interstate Scaffolding v. IWCC ruling for further appeal by our highest Court when the total amount at stake was a mere $5,000 in TTD—cases involving hundreds of thousands of dollars wouldn’t be similarly certified for further appeal.

We remain intrigued to recall a lengthy and thoroughly analyzed ruling where the five-member panel decided to issue a “non-published” ruling indicating the decision was somehow routine but all five members of the same Appellate panel certified the same ruling for appeal as critically important for further consideration by our Illinois Supreme Court.

Another ruling where Justice McCullough and the appellate panel might be subject to criticism was William G. Ceas & Co. v. Industrial Commission, issued in 1994. The Appellate Court initially issued an initial favorable decision for the defense, resulting in denial of a death claim. For reasons no one may ever know, the members of the Court quickly withdrew it. If you aren’t sure, it is very, very rare for an Appellate Court panel to withdraw a ruling they take the time to vote on, research, write up and then issue for public review. By very, very rare, your editor will assert in more than thirty years of practice and having read literally every published ruling by Justice McCullough’s panel, we can only recall this single ruling where a final decision of the panel was recalled and the majority completely reversed itself. In Ceas, the Court issued a “corrected decision” and a majority of the panel overturned its original denial and awarded full benefits to Petitioner. The only three reasons we can think of for the 180-degree turn around by all the members of the Court would be politics, politics and more politics.

Finally, we recall the article written by your editor and Shawn R. Biery, our brilliant law partner in 2008. We analyzed the odd ruling in Smalley Steel Ring where a claimant made a claim for injuries on unquestionably fraudulent grounds—he filed the WC claim in the name of a dead person and the insurance carrier/employer did not learn of the fraud until after the time to appeal had run. The defense side screamed for justice confirming the IL WC Act says the Commission’s ruling is not supposed to be conclusive unless it is issued “in the absence of fraud.” Most observers, including my parents feel it might be fraud to come into court and raise your hand and swear an oath to tell the truth all while using a dead person’s name—do you think that is fraud? Does the legislature have to pass a law stating it is fraud to do so?

The Appellate panel headed by Justice McCullough made the reasoned determination to adhere precisely to the “English language” version of the IL WC Act and allowed the lower court ruling to stand. Shawn and I chronicled how the “English language” was arguably and repeatedly “bent” by our justices in various pro-labor rulings such as Durand, General Tire and Rubber and First Assist. In Smalley Steel Ring, Justice McCullough adhered to a strict construction of the law and wrote “[s]uch deficiencies in the Act should be remedied by the legislature.” With respect to this long-time hearing officer, we feel it would have been easy to openly affirm this august Court and its members shouldn’t have allowed benefits for an unquestioned swindler who clearly had an attorney appear for him, as part and parcel to his unquestioned deceit on the Commission and our courts. With respect to the members of the Court, we wouldn’t metaphorically defer and deflect the duty of dealing with such fraud as the job of the legislature and not the courts.

In closing, we want our readers to understand Justice John McCullough brought his best to the bench every day of his 50-year-career. While we didn’t always agree with him, we remain confident he didn’t always agree with us—that is what creates the need for our judicial system. We had the highest respect for Justice McCullough as performed his sworn duties and handled his post. The lawyers and staff of Keefe, Campbell, Biery & Associates extend our deepest condolences to Justice McCullough’s family and friends across our state.

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Synopsis: Illinois Supreme Court recognizes the tort of “intrusion upon seclusion” and holds an employer liable for acts of an outside private investigator; analysis from Joseph D’Amato, J.D.

Editor’s Comment: We consider this a very important ruling for all Illinois employers and risk managers to be aware of. We are also confident surveillance operatives and investigators across the state should read this case. On October 18, 2012, the Illinois Supreme Court handed down what we believe to be an important decision for Illinois employers who use surveillance to investigate their workers.

In Lawlor v. North American Corporation of Illinois, 2012 IL 112530, issued October 18, 2012, Plaintiff Lawlor filed a claim against Defendant North American Corporation of Illinois (North American) for “intrusion upon seclusion” (more generically known as “invasion of privacy”), alleging her former employer hired investigators to obtain her private phone records.

The ruling indicates in 2005, Plaintiff Lawlor was working as a salesperson for Defendant North American when she accepted a position with Shamrock Companies, a North American competitor. North American became concerned Plaintiff was contacting its customers, possibly violating a non-competition covenant.

In order to investigate whether Plaintiff was communicating with its customers, North American hired a private investigator to obtain her phone records. North American provided the investigative firm with Plaintiff’s phone number, date of birth, social security number and other unique identifiers. The private investigator then engaged in a course of behavior the Court termed “pretexting.” In short, the private investigative firm used the unique identifiers provided to it by North American and pretended to be Lawlor in order to obtain her home phone records from AT&T and her cell phone records from U.S. Cellular. North American then used that information to determine whether Plaintiff had, in fact, contacted its customers.

Plaintiff asserted she “vomited,” suffered “anxiety,” changed her locks and installed an expensive home security system when she learned her phone records were accessed without her authorization. None of these facts were disputed at trial.

Prior to this decision the Illinois Supreme Court had never formally adopted the tort of intrusion upon seclusion, although all five Illinois Appellate districts adopted the theory of liability. In recognizing the tort, the Court adopted the definition given to it by the Restatement (Second) of Torts § 652B (1977). §652B states "One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person."

North American did not argue Plaintiff’s privacy had not been violated. Rather, North American asserted it could not be held liable for the actions of its private investigative firm, as it was unaware how Plaintiff’s phone records were obtained. Furthermore, North American argued it had no control over the way its investigators obtained the material.

The Illinois Supreme Court agreed there was no direct evidence North American knew exactly how its investigators obtained Plaintiff’s phone records. However, the Court held by providing investigators with non-public information about Plaintiff (including her social security number and other unique identifiers) and asking them to obtain her phone records, a jury could reasonably infer North American was exercising control over the actions of its private investigators, thus creating a principal-agent relationship. As such, the Court reasoned North American could be held vicariously liable for the admittedly tortious actions of its private investigators.

We think this ruling holds important lessons for any Illinois employer utilizing the services of a private investigating firm, lest they face liability for the actions of their investigators.

Be cognizant of giving out personal and sensitive employee information such as social security numbers and telephone numbers;

Clearly consult with your investigators as to what types of activities they can lawfully engage in. Although it may seem obvious, make sure your investigators know it is now actionable to impersonate an employee in order to obtain their personal information, as doing so inevitably leads to a clash between your legitimate need for information and an employee’s protected privacy rights and

Confirm your instructions and discussions with your investigative team in writing. Clear and concise written instructions may help shield you from liability in the event an investigator violates your explicit instructions and unreasonably infringes on the privacy rights of your employees.

This article was researched and written by Joseph D’Amato, J.D. He can be reached for questions or comments at jdamato@keefe-law.com.

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Synopsis: Watch out employers with Fitness for Duty requirements!!! Wisconsin Appellate Court affirms an award of workers’ compensation benefits to an off-duty police officer injured doing push-ups in his basement.

Editor’s Comment: We consider the theory and ruling in the claim to be shocking and misguided. In a government WC setting, such cases again demonstrate how poorly governments continue to be treated in the WC arena—we assure our readers “global WC coverage” of any injury occurring while off work is going to greatly increase WI WC costs and may cause taxes to rise to pay for the new unexpected costs.

In City of Appleton Police Department v. LIRC and Nofzinger, No. 2011AP2008, Patrol Officer Michael Nofzinger alleged a rotator cuff injury as a result of performing push-ups while off-duty and at his own home. There was no true “accident,” the officer just felt a pull in his shoulder. He argued he was preparing for a mandatory physical fitness test which required him to perform this specific exercise. The Wisconsin WC Commission concluded the injury occurred in the course of Nofzinger’s employment as required by WIS. STAT. §102.03(1)(c).

This section of the Wisconsin Workers’ Compensation Act contains limited guidance regarding what constitutes “service growing out of and incidental to …employment”, but one of the few areas in which the statute provides additional guidance is in reference to an employee’s participation in “well-being” programs, events, or activities:

An employee is not performing service growing out of and incidental to employment while engaging in a program, event, or activity designed to improve the physical wellbeing of the employee, whether or not the program, event, or activity is located on the employer’s premises, if participation in the program, event, or activity is voluntary and the employee receives no compensation for participation.

§102.03(1)(c)3. (emphasis added). The WI Appellate Court noted the logical corollary is an employee is performing services growing out of and incidental to employment if the employee’s injury occurs while participating in a well-being program, event, or activity that is not voluntary or for which the employee is receiving compensation. The Court cited previous case law and noted when the applicability of this section is in question there is a three-part test and the court must ask if:

v The employee is engaged in an activity designed to improve [the employee’s] physical well-being,

v [The employee’s] participation is voluntary, and

v [The employee] receives no compensation for participation.

Only if all three elements are met will the employer prevail. There was no serious dispute element one was satisfied as Office Nofzinger was participating in a well-being program or activity. The issue on appeal involved whether participation was voluntary. The Court upheld the Commission’s decision where it concluded Nofzinger’s push-ups were not voluntary and as such did not address whether he was compensated as all three of the elements must be met for the employer to prevail.

The pertinent facts which were not disputed are as follows:

v Nofzinger was required to undergo a physical fitness test twice per year;

v The test included a component measuring how many push-ups he could perform;

v He received points for each component and a cumulative score;

v If he failed to maintain an adequate score, he could be subject to disciplinary action; and

v He was injured while performing a twelfth or thirteenth successive push-up in preparation for one of the tests.

It was held the act of performing push-ups was precisely the type of activity he was required to be tested on and failing to prepare would subject him to discipline. The Court further noted Nofzinger was required to participate in a physical fitness program and it was reasonable to conclude he was complying with this requirement when he was injured.

Please remember the challenge of an “at-home” injury is investigation. In this claim, we do not feel most folks would suffer a rotator cuff tear doing standard push-ups. Risk managers have to carefully investigate and document any claim where the event occurred in the home or away from the workplace.

We find the decision unsettling considering exercising at home or in one’s spare time is something each and every one of us should be doing for our general health. We point to the specific facts of this case and the particular section of the Wisconsin WC Act to hopefully avoid a ripple effect in expanding WC coverage for all injuries which may be found compensable. We assert Officer Nofzinger would make the same claim bowling, playing golf, shooting pool, any off-duty activity where he had a physical problem could possibly be alleged to now be compensable. If you are an employer requiring Fitness for Duty testing you should consider on-duty test preparation time and on-site preparation facilities to limit liability for off-site injuries when preparing for such tests.

This article was researched and written by Matthew Ignoffo, J.D., M.S.C.C. licensed in IL and WI who can be reached at mignoffo@keefe-law.com.

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Synopsis: Welcome aboard, Tim O’Gorman.

Editor’s comment: Keefe, Campbell, Biery & Associates proudly announce the addition of Tim O’Gorman, J.D. to our legal team. Last week, Tim was sworn in as an IL lawyer and will focus his practice on defense of folks like you who face the enormous challenge of keeping your company’s costs and reserves low in aggressively defending your workers’ compensation, general liability, employment law and motor vehicle defense. Tim is up for the challenge—feel free to contact him at togorman@keefe-law.com.

KCBA Blog

11-5-12; Justice John McCullough RIP; Joe D'Amato, JD reviews "intrusion upon seclusion ruling; Matt Ignoffo, JD reviews new WI ruling expanding WC coverage and more