Check with an attorney if you question whether or not you are invading an employee’s privacy. The courts have consistently ruled employees in workers comp cases do not have a reasonable expectation of privacy when using social networking sites. Be aware, case law on the use of social media information to disprove fraudulent workers comp claims is still developing. The general direction of the law is any information the employee makes public can be used as evidence in the workers comp claim.
The use of social media to fight workers comp fraud is beginning to catch on when plaintiff attorney's start warning clients about social networking sites like Facebook, Twitter, LinkedIn, and MySpace. (WCxKit)
Nothing sinks a workers comp claim faster, from the plaintiff attorney's standpoint, than the picture of the employee rock climbing, while too injured to perform light duty work. It is amusing to think the employee actually posts these pictures on his (or her) Facebook page. Not so amusing to the plaintiff attorney is the date stamp on the picture.
When the employer questions the validity of the employee’s workers compensation claim a private investigator may be hired to check out the employee's personal blog, Twitter account, Facebook, My Space, Flickr (photo sharing) or LinkedIn pages. Or, the employer can do it pretty much for free with a little time and effort because the Internet has a wealth of information – yes, on just about everyone, even your employee. Many investigators perform virtual searches in addition to in-the-field searches, a new way to investigate in the last 25 years, and there are investigative services that specialize in virtual investigations.
The employee, presenting a fraudulent workers comp claim, is usually motivated by greed but does not think a little thing like insurance fraud should interrupt his (or her) personal world. Some don't see it as a big deal. The employee continues to live the lifestyle he has been living, including posting non-work related activities, whether it is mountain biking or reading the latest New York Times bestseller. When the employee posts the pictures of his iron man triathlon, (occurring while his back hurts so much rising from bed is nearly impossible), most doctors when presented with such evidence release the employee back to work. The plaintiff attorney, of course, argues the employee was “having a good day” when he participated in the iron man triathlon.
In addition to searching social networking sites, search by the employee's name on Google, Yahoo, or Bing. If the name is a common one, add street, city, and state to reduce the number of search returns. If an employee is on one social networking site, look to see if there are links to other social media pages. Nothing is more fun than reading a “tweet” where the employee says something like, “Boy, do I have the workers comp doctor fooled.” Of course a YouTube video of the employee skydiving can also be very entertaining. Flickr commonly has photos of such events, oh so notable are these activities in the employee's life.
If you are having difficulty with your Internet search try using pay sites charging nominal fees ($1.99 or $4.95) to search the Web for you and compile the employee’s information. Search engines like Pipl.com and Spokeo.com scour the web for you and provide a lot of info on the employee. Almost all of it will be unrelated to your employee's workers compensation claim, but the occasional golden find makes it worthwhile. (Search your own name and be dismayed by the astonishing amount of information there is about you on the internet). Spokeo aggregates information about people from various accounts they open; it also includes their "wish lists" from Amazon and other sites.
Some employees with questionable injury claims do not post anything discriminating about themselves; however their “friends” do post pictures of the employee involved in their activities then append the employee's name to the photo images. When defense attorneys request information through the discovery process, employees often argue their privacy is being invaded. If the employee refuses to turn over the information on the social media sites, the defense attorney can obtain a court order and most social networking sites will provide the request information from the employee's web page. Generally, the rules of evidence are more relaxed in workers compensation cases than in criminal cases, and the social website information is admitted as evidence. (WCxKit)
Share with the claims adjuster and defense attorney any evidence you turn up showing the employee's injury is not as bad as claimed. Do not share the information with the employee, unless you want the information to “disappear.” Any social media developed evidence is used in conjunction with and to substantiate other evidence developed in the investigation.
Author Robert Elliott, executive vice president, Amaxx Risks Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers Compensation costs, including airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. See www.LowerWC.com for more information. Contact:Info@ReduceYourWorkersComp.com .
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