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.