Social Media presents an important- and free – tool for investigating and defending against workers’ compensation claims when used properly.
Today’s Social Media, which includes, but is not limited to, Facebook, Instagram, Snapchat, YouTube, Twitter, Blogs- allows previously unprecedented access to the lives, actions and activities of workers’ compensation claimants.
Through access to Social Media, employers/claims adjusters can secure free evidence to investigate workers’ compensation claims through both admissions of claimants themselves, and through postings of/tagging by friends and family members of the claimants.
There are primarily two times employers/claims adjusters may be interested in collecting evidence- compensability and misrepresentation.
The first instance is when employers/claims adjusters are investigating the compensability of the workers’ compensation claim. Specifically, an employer and/or claims adjuster may want to investigate a claimant’s Social Media sites if any of the following red flags are present:
- Unwitnessed accident;
- Late reporting;
- Friday afternoon/Monday morning injuries;
- Injuries allegedly occurred around holidays or anticipated layoff termination; and/or
- Injuries allegedly occurred after the claimant has been reprimanded or disciplined.
The second instance is when an employer and/or claims adjuster is concerned the claimant is misrepresenting his/her abilities. This may occur when a claimant is repeatedly turning in out-of-work notes for a seemingly minor injury or demonstrating potentially exaggerated pain complaints/behaviors.
How to collect Social Media evidence?
First – Determine whether the claimant has retained an attorney to represent him/her for the workers’ compensation claim.
Pursuant to Rule 614 of the Workers’ Compensation Rules of the North Carolina Industrial Commission, defendants are not permitted to have direct communication with a claimant who is represented by an attorney without first securing the attorney’s permission.
There is a difference between communicating with a claimant and viewing a claimant’s Social Media sites- if done properly. The key is to collect evidence – not create evidence.
Second- Is the claimant’s Social Media site public?
Before accessing a personal social media site, the employer/claims adjuster must have “permissible and legal access” to the site. The critical factor when assessing whether the employer/claims adjuster has overstepped the claimant’s expectation of privacy is the claimant’s privacy settings.
If the claimant’s Social Media site is public, an employer/claims adjuster is permitted to view what the claimant posts.
Practice Tip – When collecting Social Media evidence, make specific notations concerning the date/time and the privacy setting when the site is viewed. Better yet- print off the Social Media site and note this information.
Third- Does the employer/claims adjuster already have access to the claimant’s Social Media Sites?
Even though a claimant may have an expectation of privacy due to his/her privacy settings, the claimant does not have an expectation of privacy with those the claimant chose to be “friends” with on a social networking site. Thus, as an individual’s Social Media network becomes larger, his/her expectation of privacy shrinks.
If the employer/claims adjuster is already “friends”/already has access, the employer/claims adjuster may view what the claimant/the claimant’s friends/family members post that is within the employer/claims adjuster’s level of accessibility.
Again, the takeaway here is when collecting Social Media evidence, make specific notations as to when the Social Media site is viewed and what the privacy settings are at that time. If the settings are private, but the employer/claims adjuster has access, note the access and that the evidence being collected is within that access.
This leads to Pitfalls to avoid.
- First – This means not making/initiating contact with the claimant. This means not sending a “friend” request or requesting access to the Social Media- particularly if the claimant is represented by an attorney.
- Second – Remember the goal in reviewing the claimant’s Social Media sites, if there is proper access, is to collect evidence- not to create
What about requesting access if the claimant is not represented? Remember the discussion about collecting- not creating- evidence. That theme applies here too. If the employer does not already have access, do not establish contact/communications for the purpose of potentially collecting evidence to help defend against a workers’ compensation claim. This could potentially create an invasion of privacy issue and/or result in the evidence being inadmissible before the Industrial Commission.
What about if the employee’s Social Media site is private, the employer does not have access, but another employee does- may the employer use their credentials to access the site? NO – do not “borrow” someone’s credentials or create an alias to view the site- this could potentially create an invasion of privacy issue and/or result in the evidence being inadmissible before the Industrial Commission.
If the employer has properly viewed a claimant’s Social Media site, and discovered helpful information, the employer should get the information to the defense attorney or the claims adjuster if an attorney has not yet been assigned so they may preserve it for future use. In addition, they may take the next strategic steps, such as assigning physical surveillance and/or serving the claimant with a set of Discovery. Read more about Discovery tips in Part Seven (7) of the Cost Containment Strategies Blog Series.
Questions? Please contact Jennifer directly at (919) 863-8846 or firstname.lastname@example.org.