Social Media and Workers' Compensation: What Gets Posted Can Hurt You
Defense attorneys and adjusters (and even state attorneys) are using social media sites more and more to support claims of fraud against injured workers. Facebook, Twitter, Instagram, and even YouTube, as well as numerous other sites that have popped up, have become treasure troves of information for insurance companies. Whether the posts are from those of us that just love to share family/friend photos and comments or the more extreme social posters that can’t help but to show off how cool they are, use of social media by injured workers becomes an invitation for trouble in the work comp case.
First, I go on the record with the statement that anyone lying about a work injury or intentionally exaggerating their injury should be caught and punished accordingly. So, this post is not directed at anyone falling in these categories. But, through the years, I’ve watched as very innocent and legitimately injured hard working people are caught up in the fraud “witch” hunt. For those of you who have had the misfortune to be injured on the job, and especially if your doctor has taken you out of work while you recover, this post is for you.
There exists in our society a systemic bias against anyone that reports an injury on the job. It truly seems that anyone with a work comp claim is automatically assumed by employers, doctors, adjusters, case managers, and even the public at large to be suspect. Did they really get hurt? Did anyone witness it? Was it really on the job? Is it really as bad as they say it is? For the thousands and thousands of very legitimately injured workers, these automatically programmed (and most often unwarranted) questions from the rest of us make the lives of injured workers difficult. Employers may consider firing them, doctors don’t trust reported complaints of pain, adjusters feel overly justified in denying benefits, and co-workers mock those on “light duty”. And, as silly as it may sound, posting a photo of yourself smiling at a restaurant with your friends on your Facebook page may be used as proof you’re not hurt as bad as you say you are.
Consider the following excerpt copied from an insurance journal article:
Andrew Matthews, assistant vice president with third-party administrator Avizent, says that his company actually has a full-time employee who monitors social media websites, trolling for information. “It’s really amazing what people put on Facebook, and then brag about it,” Matthews says. “You’re looking for an indication of activity they’re talking about that they’re not supposed to be doing.” And it doesn’t just have to be a photo of the supposedly injured worker snowboarding on a half pipe. If someone writes on his wall that he’s going to be moving this weekend, that’s a good time to do some surveillance,” says one fraud expert. Private investigators say that getting behind someone’s wall can be accomplished by setting up a Facebook page and then getting others to friend you, including someone you’re monitoring.
The above point of view from the insurance industry is understandable. An employer or insurance company should not being paying for fraudulent claims. And, as long as the focus remains on using clear evidence to refute a worker’s claim, the use of social media is a legitimate and helpful tool toward that end. But, for less clear and more equivocal “evidence”, let’s remember that the interpretation of a posted photo or comment is influenced by the mindset of the viewer. In other words, we often see what we expect to see. Consider the following real life examples:
One client, who had an injury claim, went out to a restaurant/bar with friends one night and posted about it on social media. The defense attorney reviewed the post and tried to use that status as evidence that his injury wasn’t as serious as he claimed and didn’t affect his daily quality of life. The rationale was that if he could enjoy a night out with friends, then he must not really be hurt.
If you’re inclined to agree, consider these additional facts. The worker is a police officer that injured his shoulder taking down a drug dealer. He is recovering from surgery and goes to physical therapy every other day. He’s only been cleared by his doctor for light duty jobs that do not require him to use his injured shoulder/arm/hand. His employer doesn’t have a position for him until he is released to full duty, hopefully, in a few more weeks. He has stayed at home so much lately, he is starting to get cabin fever and is pushing to go back to work early. His wife and friends have insisted he get out of the house for dinner. He goes and has a good time, all the while never doing anything outside the doctor’s restrictions. The photos show him sitting and smiling with his wife and friends. It doesn’t show his arm sling, or the bottle of pain pills and muscle relaxers he has to take every four hours, or him trying to sleeping in a recliner every night because he can’t lie flat, or him waking up every couple of hours.
Another client posted a photo of a very large buck he killed. This was posted in response to a friend’s post of the friend’s very large buck that was killed. The friend killed his buck yesterday. The client killed his buck last year before the work injury, but this part isn’t mentioned in the post. The defense attorney neglected to check the metadata on the photo and thought the hunting was being done this year against doctor’s advice. The client’s benefits were temporarily denied pending the clearing up of this misunderstanding (that always takes longer than it should.)
Behind every posted photo and comment, there is much more information that can either help or hurt depending on the goal. For our clients, we strongly recommend against any postings during the life of a work comp claim. While we have been able to provide reasonable explanations for most of our client’s misunderstood photos and comments on social media, it is best not to invite the trouble in the first place.
If you choose to continue with social postings, at a minimum, we recommend that our clients use the highest privacy setting available so the things you post are only viewable by close friends and family members. Even so, you need to remember that there’s no real privacy online. It’s very likely the insurance company and its attorneys will see what you have posted, whether they find it on their own, someone shares it with them or we’re required by the court to provide it to them.
The lesson here is be careful what you say or share, especially on line, – and in many cases, it may be best not to say anything at all. The more information you put out in the world, the more likely it’s going to be used against you.