By Lucy Carmel, THELAW.TV
People who file workers’ compensation claims have long faced scrutiny from insurance companies. In the past, insurance companies went as far as hiring private investigators to monitor every move the claimant made. Now, social media is proving to be a valuable tool in proving workers’ compensation fraud.
An Arkansas appeals court recently ruled that Facebook and Myspace photos could be used as evidence in a workers’ compensation lawsuit.
ABC News reports that workers’ compensation recipient Zachary Clement had his appeal denied for additional benefits following a payout for medical expenses and total-disability payments he received for more than a year. Clements was injured on the job after a refrigerator fell on him at Johnson’s Warehouse Showroom in Pine Bluff, Ark.
In Clement’s appeal for an extension of benefits, he contended that he required further medical care and compensation for pain. But photos posted on social media of Clement drinking at bars surfaced and will be used in his court case.
So, is using third-party evidence in workers’ compensation cases really anything new?
“Before social media became prevalent, employers and insurance companies had third parties conducting surveillance on injured workers,” says David Nomberg, P.A., and partner at The Nomberg Law Firm in Birmingham, Ala.
Now that employees are on Facebook, Twitter and other social networks, the defense finds plaintiffs online to see what they’re saying and doing.
Old-school surveillance simply lives on in a new online form.
Social media could even make the days of investigators sitting in a car outside injured workers’ home, filming their every move, obsolete.
Whether evidence comes from the real world or the virtual world, it has to be admissible in court. Judges determine if surveillance video or Facebook posts can be used by the defense against the plaintiff.
Reputation management is crucial
“In a workers’ comp case, a client’s credibility is probably as, if not more, important than anything else in the whole case,” says Nomberg. “If the judge doesn’t believe you, you don’t have a chance.”
With a plaintiff’s reputation at stake, attorneys of defendants often bring character of the claimant under fire.
For a case in point, one of Nomberg’s workers’ compensation clients took to her Facebook page just days before her deposition, commenting about ‘taking down’ her employer. The plaintiff had posted three separate entries about her pending case. Though the comments were deleted, the damage had been done.
“The horse was out of the barn,” says Bernard Nomberg, P.A., and partner at his namesake law firm. “It factored into her case and hurt her monetarily.” The client could have potentially walked away with more compensation had it not been for her Facebook rant.
Of course, evidence gathered by the defense can be discredited when it’s inaccurate. In a separate case, Nomberg recalls video footage from the defense of someone they thought was his client riding a motorcycle, when it was, in fact, his client’s daughter.
Social media: Setting a new precedent?
Decisions to use social media evidence in cases such as Clement’s in Arkansas may be cited in future lawsuits — including workers’ compensation cases and any other types of litigation.
But ultimately, each state has unique laws, and cases will be governed accordingly.
And how far will defendants go to scrape social media evidence?
“We’re starting to see requests from the defense and from employers in litigation asking for social media account names and passwords,” says Bernard.
The Nomberg’s say a judge has yet compelled them to comply with these requests, but they see it happening someday. “We object to it as an invasion of privacy, as burdensome, and as not being relevant.”
Though this advice may be too little too late for Clement in Arkansas, “A good rule of thumb for anyone involved in a lawsuit is to always assume you’re being surveilled”, says Bernard. Adds David, “We always tell our clients to be mindful of their activities because they’re being watched.”
Injured employees and workers’ compensation claimants are still free to live their lives, just within their physician’s restrictions. And they don’t have to log off of their social media accounts, but they shouldn’t post comments, photos or statements about their case or their physical condition.
“And that’s even if you have all the privacy settings in place,” says Bernard. “Friends of friends can be enemies.”
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