SOCIAL
MEDIA CAUTIONS
By Dennis R. Kurth, Associate Attorney
Certified Workers' Compensation Specialist
Litigating workers’ compensation cases before the
Industrial Commission can often be a highly partisan affair. Because of the high financial stakes in a
serious injury claim, carriers will underwrite expensive investigations and
surveillance of workers’ compensation claimants. The goal is to find contradictions in a
claimant’s testimony about the details of the accident, their medical history
and their post-injury physical capabilities.
Defense attorneys have successfully used such information to argue that
a claimant’s injuries have been exaggerated and that the claimant is
dishonest. Such evidence, in the face of
sworn testimony to the contrary, can be fatal to the claimant’s case.
Over the years, carriers’ efforts to “dig up the
dirt” on claimants have evolved from simple medical and courthouse record
searches and private investigation surveillance to the infiltration of social
media accounts on Facebook, Twitter, YouTube and e-mail. In a recent case that comes to mind, a client
who was claiming back injuries and severe depression stemming from a work
injury, had to explain photos and statements on his Facebook page that seemed
to show him having a good time boating on Lake Pleasant and at a family
birthday party.
Consequently, worker’s compensation claimants should
be warned to implement certain safeguards in regards to the use of such
accounts after an injury has occurred and a claim has been filed especially if
the claim has been denied and is in litigation.
First, claimants should not put anything about their
injuries in writing, except to the extent necessary to fill out forms for their
doctors, without their attorney’s advice and permission.
Second, claimants should not send e-mails regarding
their case to anyone except their attorneys and make sure that no other parties
are copied on those e-mails. Claimants
should always be aware of what they say or post, especially photographs, on the
internet.
Third, if claimants have public accounts with
services such as Facebook, Twitter, Myspace, YouTube, etc., those accounts should
be made private until the litigation is over and the claim is resolved.
Fourth, no on should be allowed to become a “friend”
on an account unless the claimant is absolutely sure that they know that
person.
No doubt it can be difficult for an internet-savvy
claimant with broad online exposure to observe these guidelines, but it is a
discipline that must be self-imposed to preserve personal privacy against
carriers’ inquisitiveness and to enhance their chance to win their case.
