[Cite as McIntyre v. Bur. of Workers' Comp., 2012-Ohio-6359.]




                                                       Court of Claims of Ohio
                                                                            The Ohio Judicial Center
                                                                    65 South Front Street, Third Floor
                                                                               Columbus, OH 43215
                                                                     614.387.9800 or 1.800.824.8263
                                                                                www.cco.state.oh.us



STEDSON R. MCINTYRE

       Plaintiff

       v.

OHIO BUREAU OF WORKERS’ COMPENSATION

       Defendant

Case No. 2011-11394

Judge Patrick M. McGrath
Magistrate Holly True Shaver

DECISION

        {¶ 1} On August 13, 2012, plaintiff filed a motion for summary judgment pursuant
to Civ.R. 56(A). On September 4, 2012, defendant filed both a response and a cross-
motion for summary judgment pursuant to Civ.R. 56(B).1             On September 10, 2012,
plaintiff filed a response to defendant’s motion. The motions are now before the court
for a non-oral hearing pursuant to Civ.R. 56 and L.C.C.R. 4.
        {¶ 2} Civ.R. 56(C) states, in part, as follows:
        {¶ 3} “Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits, transcripts of
evidence, and written stipulations of fact, if any, timely filed in the action, show that
there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. No evidence or stipulation may be considered except as
stated in this rule. A summary judgment shall not be rendered unless it appears from

        1
        On August 24, 2012, defendant filed a motion for an extension of time in which to file a
response, which is GRANTED, instanter.
Case No. 2011-11394                       -2-                                    ENTRY

the evidence or stipulation, and only from the evidence or stipulation, that reasonable
minds can come to but one conclusion and that conclusion is adverse to the party
against whom the motion for summary judgment is made, that party being entitled to
have the evidence or stipulation construed most strongly in the party’s favor.” See also
Gilbert v. Summit Cty., 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v. Wean
United, Inc., 50 Ohio St.2d 317 (1977).
       {¶ 4} From 1979 to 2007, plaintiff was the owner-operator of a corporation known
as Bureau of Research, a private investigation business. Plaintiff’s clients included both
Cuyahoga County and the city of Cleveland. At his clients’ requests, plaintiff would
conduct surveillance on city and county employees whose claims for workers’
compensation had been granted to determine whether they were physically able to
return to work.
       {¶ 5} In approximately the mid-1990s, plaintiff began a relationship with a former
claims specialist for defendant in the Cleveland area, Marlene Woodruff, whereby he or
his agents would call Woodruff directly and ask her to obtain claim information for him.
In approximately 2004, Woodruff began to ask plaintiff for compensation. In exchange
for payment, Woodruff provided plaintiff with information about workers’ compensation
claimants, including individuals’ claim numbers, types of injury, physician of record,
diagnosis, status of the claim, and claim history, regardless of the claimant’s employer.
When this information was given to plaintiff, Woodruff was not provided with any
authorization signed by the claimants that showed that either plaintiff or his agents were
permitted to access the information.
       {¶ 6} By 2007, Woodruff began to ask plaintiff for compensation at more frequent
intervals. Plaintiff telephoned a friend of his, Mark Bentley, who worked for defendant to
report what was occurring. As a result, the Ohio State Highway Patrol (OSHP) began a
criminal investigation regarding Woodruff.      OSHP contacted plaintiff and shortly
thereafter, plaintiff decided to “walk away” from his company. Plaintiff erased all data
Case No. 2011-11394                               -3-                                          ENTRY

from his computers and hired the company “Shred-It” to destroy his paper records.
During the investigation, plaintiff provided OSHP with documents that reflected the
payments that he had made to Woodruff. OSHP completed its investigation in March
2008. As a result of the investigation, Woodruff pleaded guilty to a charge of soliciting
or accepting improper compensation and was ordered to pay a monetary fine.
        {¶ 7} On January 2, 2008, while the investigation was ongoing, Tom Sico,
Assistant General Counsel for defendant, sent a letter to approximately 49 workers’
compensation claimants notifying them that their claim information, including social
security numbers and home addresses, was accessed without the appropriate
authorization. In the letter, Sico advised the claimants of the possibility of identity theft.
The letter does not identify plaintiff as having accessed the information. However, the
allegations that led to the investigation were reported by the news media in 2008 and
2009, and plaintiff’s name was mentioned in those reports as having bought confidential
information from Woodruff over a period of years.
        {¶ 8} After receiving the letter from Sico, certain claimants, including Sandra
Jones, filed a purported class action lawsuit in this court on behalf of individuals whose
information might have been accessed illegally.                Jones alleged that the disclosure
exposed her to the risk of identity theft. In that litigation, plaintiff’s deposition was taken
on April 29, 2009.        Plaintiff explained that he had been hired by Jones’ employer,
Cuyahoga County, to investigate her workers’ compensation claim in July 2007. During
the deposition, he provided a release that had been signed by Jones to give Cuyahoga
County and/or its representatives authority to access her claim information regarding
her accident that had occurred on April 11, 2007.                   Plaintiff insisted that he was
authorized to access Jones’ information because he was doing the investigation for
Cuyahoga County.2

        2
           Defendant filed a motion for summary judgment in that litigation; Jones dismissed her claim and
re-filed it in 2010; defendant then re-filed its motion for summary judgment which was granted on March
Case No. 2011-11394                        -4-                                   ENTRY

        {¶ 9} On February 19, 2010, a claims specialist from defendant’s Portsmouth
office emailed her supervisor, Karen Mershon, to inquire about a complaint she had
received from a claimant.      According to the claims specialist, plaintiff had been
contacting the claimant to inquire about his workers’ compensation claim. The claims
specialist had searched plaintiff’s name on the Internet and found articles that he had
bought claimants’ information from a former employee of defendant named Marlene
Woodruff. The email states: “Our concern is that Mr. McIntyre is still using the previous
information that Ms. Woodruff gave him as a scam involving our [injured worker]
information that was previously taken.” (Plaintiff’s Exhibit E.) The response to the email
is from another employee of defendant who related that plaintiff was a private
investigator from Cleveland who was being sued by several claimants. Id.
        {¶ 10} Plaintiff asserts that from 2007 to 2010, defendant defamed him by
advising his clients that he was under investigation for illegally accessing defendant’s
confidential records when, in fact, he had authorization to obtain those records. Plaintiff
further asserts that the actions of defendant’s employees continued to place him in a
false light even after the investigation concluded that he was authorized to access the
records. In contrast, defendant asserts that plaintiff cannot prove any cognizable claim
for relief.


I. DEFAMATION
        {¶ 11} “Defamation is defined as the unprivileged publication of a false and
defamatory matter about another * * * which tends to cause injury to a person’s
reputation or exposes him to public hatred, contempt, ridicule, shame or disgrace * * *.”
McCartney v. Oblates of St. Francis deSales, 80 Ohio App.3d 345, 353 (6th Dist.1992).
“As suggested by the definition, a publication of statements, even where they may be

23, 2011.
Case No. 2011-11394                          -5-                                     ENTRY

false and defamatory, does not rise to the level of actionable defamation unless the
publication is also unprivileged. Thus, the threshold issue in such cases is whether the
statements at issue were privileged or unprivileged publications.” Sullivan v. Ohio Dept.
of Rehab. & Corr., Ct. of Cl. No. 2003-02161, 2005-Ohio-2122, ¶ 8.
       {¶ 12} Privileged statements are those that are “made in good faith on any
subject matter in which the person communicating has an interest, or in reference to
which he has a right or duty, if made to a person having a corresponding interest or duty
on a privileged occasion and in a manner and under circumstances fairly warranted by
the occasion and duty, right or interest. The essential elements thereof are good faith,
an interest to be upheld, a statement limited in its scope to this purpose, a proper
occasion, and publication in a proper manner and to proper parties only.” Hahn v.
Kotten, 43 Ohio St.2d 237, 244 (1975), quoting 50 American Jurisprudence 2d, Libel
and Slander, Section 195 at 698.
       {¶ 13} Plaintiff filed the affidavit of Tom Sico that was taken in the Jones litigation.
Sico avers, in pertinent part, as follows:
       {¶ 14} “3. Through my position as Assistant General Counsel, I am familiar with
the policies and procedures of the [Bureau of Workers’ Compensation] BWC.
Specifically, I am familiar with BWC’s policy relating to public records and the release of
information.
       {¶ 15} “4. * * * Effective October 2006, R.C. 4123.88, which governs the release
of claim file information, was amended by S.B. 7 of the 126th General Assembly to
provide that a claim file shall not be open to the public. BWC updated its public records
policy to comply with this law effective August 2007.
       {¶ 16} “5.   Pursuant to BWC’s policy, if an individual from the general public
requested an individual’s claim file prior to the change in R.C. 4123.88 in S.B. 7, the
following information would be released as public record: 1) claim/risk number; 2) the
name, address phone number of the injured worker; employer, representatives, MCOs,
Case No. 2011-11394                          -6-                                 ENTRY

and providers; 3) claim status; 4) the allowed conditions/ICD-9 Codes; 5) redacted
medical records generated to determine the injured worker’s entitlement to benefits; 6)
payments, including compensation, medical benefits, attorneys fees, etc.; 7)
psychological conditions, if an allowed condition; and 8) reserves.
      {¶ 17} “6.   Pursuant to the policy, if an individual from the general public
requested an individual’s claim prior to the change in R.C. 4123.88 in S.B. 7, the claim
information that would have been properly withheld includes: 1) medical records
generated in the course of treatment and 2) whether or not the individual is HIV positive.
      {¶ 18} “7. After the change in R.C. 4123.88 in S.B. 7, the general public could not
access any information in a claim file. However, at all times prior to or after the changes
in R.C. 4123.88 in S.B. 7, if a person had authorization from the injured worker or the
employer, the person could examine or have access to all records of the claim file
permitted by the release or authorization.
      {¶ 19} “8. On November, 21, 2007, the BWC learned that Stedson McIntyre, a
private investigator working in the Cleveland, Ohio area may have purchased
claim/injured worker information stored on the BWC computer system from former BWC
claims specialist Marlene Woodruff.
      {¶ 20} “9. An investigation was conducted to investigate the potential security
breach involving Stedson McIntyre and Marlene Woodruff.
      {¶ 21} “10. Through the investigation, it was determined that over the span of
approximately ten years, Mr. McIntyre, generally working as a private investigator for
the claimants’ employers, requested and received BWC claim information for claimants
from Ms. Woodruff.
      {¶ 22} “11. The BWC learned that Plaintiff Sandra Jones’ claim information may
have been obtained by Mr. McIntyre from Marlene Woodruff.
      {¶ 23} “12. I sent a letter to Ms. Jones on January 2, 2008 notifying her that her
BWC claim information may have been accessed by an external party. A true and
Case No. 2011-11394                        -7-                                   ENTRY

accurate copy of the letter sent on January 2, 2008 to Ms. Jones from me is attached as
Exhibit 2.” (Plaintiff’s Exhibit G.)
       {¶ 24} Construing the facts most strongly in plaintiff’s favor, the only reasonable
conclusion is that the letter that Sico sent to claimants in 2008 was made in good faith.
Defendant had an interest to uphold in ensuring that claimants’ information, including
social security numbers and home addresses, was not accessed illegally. The letter
was limited in its scope for that purpose, was made under requirement of law, and was
published in a proper manner to proper parties only. Therefore, the court finds that
defendant’s allegedly defamatory statements regarding plaintiff contained in the letter
from Sico were privileged communications.
       {¶ 25} With regard to the 2010 emails, the conclusion is the same. The emails
were made in good faith based upon an inquiry from a claimant, defendant had an
interest to uphold in ensuring that the claimant’s information had not been obtained
illegally, the emails were limited in their scope for that purpose, were made under
requirement of law, and were published in a proper manner to proper parties only.
Accordingly, the court finds that the 2010 emails were privileged communications.
       {¶ 26} A qualified privilege can be defeated only by clear and convincing
evidence of actual malice. Bartlett v. Daniel Drake Mem. Hosp., 75 Ohio App.3d 334,
340 (1991). “Actual malice” is “acting with knowledge that the statements are false or
acting with reckless disregard as to their truth or falsity.” Jacobs v. Frank, 60 Ohio
St.3d. 111, 116 (1991).
       {¶ 27} Construing the evidence most strongly in favor of plaintiff, the only
reasonable conclusion is that defendant’s employees did not act with reckless disregard
as to the truth or falsity of the statements they made. Plaintiff has brought forth no
evidence as allowed pursuant to Civ.R. 56 to suggest that defendant’s actions
constituted actual malice. Therefore, reasonable minds can come to but one conclusion
and that conclusion is adverse to plaintiff on his claim of defamation.
Case No. 2011-11394                           -8-                                      ENTRY



II. FALSE-LIGHT INVASION OF PRIVACY
       {¶ 28} As to plaintiff’s second cause of action, the Supreme Court of Ohio has
recognized the tort of false-light invasion of privacy and adopted Restatement of the
Law 2d, Torts, Section 652E. Welling v. Weinfeld, 113 Ohio St.3d 464, 2007-Ohio-
2451, ¶ 61. The court held that “one who gives publicity to a matter concerning another
that places the other before the public in a false light is subject to liability to the other for
invasion of his privacy if (a) the false light in which the other was placed would be highly
offensive to a reasonable person, and (b) the actor had knowledge of or acted in
reckless disregard as to the falsity of the publicized matter and the false light in which
the other would be placed.” Id.         In Welling; however, the court warned that the
“requirements imposed by the Restatement make a false-light claim difficult to prove.”
Id. at ¶ 51. The court emphasized that “the statement made must be untrue [and] the
information must be “publicized,” which is different from “published.” Id. at ¶ 52.
       {¶ 29} According to the explanation offered by the Restatement of the Law 2d,
Torts, Section 652D, Comment a, “‘[p]ublicity,’ as it is used in this Section, differs from
‘publication,’ as that term is used * * * in connection with liability for defamation.
‘Publication,’ in that sense, is a word of art, which includes any communication by the
defendant to a third person. ‘Publicity,’ on the other hand, means that the matter is
made public, by communicating it to the public at large, or to so many persons that the
matter must be regarded as substantially certain to become one of public knowledge.
The difference is not one of the means of communication, which may be oral, written or
by any other means. It is one of a communication that reaches, or is sure to reach, the
public.”
       {¶ 30} Construing the evidence most strongly in plaintiff’s favor, the only
reasonable conclusion is that none of the statements by defendant’s employees was
made with any knowledge of untruthfulness or with reckless disregard as to any falsity.
Case No. 2011-11394                           -9-                          ENTRY

Furthermore, plaintiff has provided no evidence to establish publicity.   Therefore,
reasonable minds can come to but one conclusion and that conclusion is adverse to
plaintiff on his claim for false- light invasion of privacy.
       {¶ 31} Accordingly, summary judgment shall be rendered in favor of defendant,
and plaintiff’s motion for summary judgment shall be denied.
Case No. 2011-11394                      - 10 -                                      ENTRY




                                             Court of Claims of Ohio
                                                                       The Ohio Judicial Center
                                                               65 South Front Street, Third Floor
                                                                          Columbus, OH 43215
                                                                614.387.9800 or 1.800.824.8263
                                                                           www.cco.state.oh.us



STEDSON R. MCINTYRE

      Plaintiff

      v.

OHIO BUREAU OF WORKERS’ COMPENSATION

      Defendant

Case No. 2011-11394

Judge Patrick M. McGrath
Magistrate Holly True Shaver

JUDGMENT ENTRY

      {¶ 32} A non-oral hearing was conducted in this case upon both parties’ cross-
motions for summary judgment.        For the reasons set forth in the decision filed
concurrently herewith, plaintiff’s motion for summary judgment is DENIED, defendant’s
motion for summary judgment is GRANTED, and judgment is rendered in favor of
defendant. All previously scheduled events are VACATED. Court costs are assessed
against plaintiff. The clerk shall serve upon all parties notice of this judgment and its
date of entry upon the journal.
                                         _____________________________________
                                         PATRICK M. MCGRATH
                                         Judge
Case No. 2011-11394               - 11 -                           ENTRY


cc:


Emily M. Simmons                    Stedson R. McIntyre
Randall W. Knutti                   650 Clinton Lane
Assistant Attorneys General         Highland Heights, Ohio 44143
150 East Gay Street, 18th Floor
Columbus, Ohio 43215-3130
002
Filed November 30, 2012
To S.C. Reporter March 22, 2013
