If you are reading this article, then you have Internet access.
And if you have Internet access, there is a high probability that you are one of the tens of millions of Internet users with a profile on a social networking site.
Facebook. YouTube. Instagram. Twitter. Reddit. Pinterest. Tumblr. Flickr. Google+. LinkedIn. Meetup. Snapchat. These are the most popular social networks in the United States. And most of us have a profile on at least one of these sites so that we can share information, thoughts, memories, experiences, events, and photographs with friends, family members, and loved ones.
There is no dispute that social media has changed the way we communicate and interact with others. And that it has many benefits.
But those of you with a car accident, traumatic brain injury, spinal cord injury, Social Security Disability, or workers compensation case may be doing more than letting friends and family know how you spend your day when you post on social media. You may be hurting your injury case.
Social media, especially Facebook, Instagram, and Twitter, provides evidence, which is the key to winning – or losing – a lawsuit or insurance claim.
Your employer and its insurance carrier may use information from social networking sites to contest that you have the physical limitations or emotional suffering alleged. And one careless social media post can hurt your credibility and prevent you from getting the monetary damages and award you deserve.
The purpose of this article is to help you navigate social media when you are involved in workers compensation litigation. After reading you will know:
Keep reading to learn more about how social media can impact your work injury case.
If you are looking for a compassionate attorney to help you get the Virginia workers compensation settlement you deserve, call me: 804-251-1620 or 757-810-5614. Come see why I’ve been voted a Rising Star by Super Lawyers Magazine and one of the Best Lawyers in America for workers compensation.
The insurer is investigating your social media to:
Simply put, the insurance company is looking at your social media profiles for proof that you are not telling the truth and to defeat, deny, or dispute your claim.
Insurance companies use several methods to find social media evidence to challenge your claim.
Informal Discovery to Find Social Media Evidence
The first method to find social media information is by informal discovery. This is a fancy term for research done without the use of written discovery requests such as interrogatories, requests for production, requests for admission, or subpoenas, or depositions.
The claims adjuster or defense attorney will search your name on Google, White Pages, Spokeo, Pipl, and the most popular social network sites to try to find your social media profiles.
Once they find your social network profiles, they will look for information to contest your claim. This is done not only by viewing your profile but also by viewing the profiles of your friends and family members, as well as the pages of businesses or groups you like.
For example, if you like a local gym on Facebook, the insurer may send a private investigator to your gym to try to find out how often you go and whether you have exercised since your workplace accident.
Or if you are “tagged” in pictures at a local restaurant or bar, the insurer’s private investigator may interview the bartender or waitstaff to see if you had any limitations.
Asking Your Employer to View Your Social Media Profiles and Print the Pages
As part of informal discovery the insurer may ask your employer to try to get information from your social networking profiles.
Insurance companies understand that many injured employees are “friends” with co-workers and even supervisors on social media. Changing your privacy settings, therefore, many not prevent the insurer from seeing what you have posted.
Formal Discovery to Find Social Media Evidence
In addition to informal discovery, many insurers use formal discovery to get social media evidence to defend a workers comp claim.
Virginia Workers Compensation Rule 1.8(A) states:
The scope of discovery shall extend only to matters which are relevant to issues pending before the Commission and which are not privileged. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may be obtained by oral or written deposition, interrogatories to parties, production of documents or things, requests for admission, inspection of premises or other means of inquiry approved by the Commission.
Formal discovery tools such as interrogatories and requests for production are used to find out your user name on various profiles so that the insurer can look at information made public on those profiles.
The insurer may also ask you to produce all posts, messages, tweets, retweets, wall posts, comments, status updates, blog entries, comments, videos, and pictures since the date of the accident.
And I have even seen some insurance companies ask injured employees to sign a written authorization granting the insurer permission to get a complete copy of all of the employee’s social media content.
I explain how to respond to these discovery requests later in the article. But for now, just know that you should not sign a written authorization or voluntarily produce all of the content from your social media profiles without talking to a lawyer first.
Obtaining Social Media Content and Account Information from Third Parties
Sometimes insurance carriers threaten to subpoena social media information from the social media network directly if the content is not produced. This is an empty threat in most workers comp cases. And you should call the insurer’s bluff.
In my experience Facebook and other social network sites often deny subpoena requests from employers and insurance carriers under the Stored Communications Act.
The Stored Communications Act is meant to protect the privacy of electronic communications that are not made to the public. Under the statute electronic communication service providers, including social network websites, are not allowed to reveal the content of communications they store, with limited exceptions.
I recommend forcing the employer and its insurer to prove that a limited exception exists. Chances are good they will not be able to meet their burden.
The Virginia Workers Compensation Commission is not bound by formal rules of evidence and procedure. But in my experience the Commission usually follows the Virginia Rules of Evidence and allows social media posts and images into evidence at hearing.
What you say or post on social media is usually admissible if the insurance carrier can authenticate the documents. There are two primary methods to authenticate social media evidence.
First, the insurance company can ask you to authenticate and admit to the posts or images. If you posted the information, then you will have to admit to it or risk losing credibility.
Second, the insurance carrier can use existing case law if you do not admit to the social media evidence.
In Virginia the “appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances, can be sufficient to authenticate.” So even if you do not admit to posts on your social networking profile they may come into evidence anyway.
Because you cannot rely on the Virginia Rules of Evidence to prevent harmful social media information from getting into evidence, you should try to make sure the insurance carrier does not have access to your social networking profiles without deleting the profiles.
Fortunately you have a strong chance of keeping this information from the insurer if you are proactive. This is because Virginia workers compensation law does not give insurance companies unlimited access to your social media. Rather, the insurer has the burden of showing you should have to turn over social media content.
The Virginia Workers Compensation Commission examined the role of social media information in workers comp litigation in Wright v. Yankee Point Marina, Inc., JCN VA02000012633 (2014).
The Wright decision helps injured workers, but does not create a “bright line” rule on which you can rely to shield your social media information.
Insurer Asked the Employee to Produce All of the Content of Her Social Media Sites
In Wright the employer and its workers comp insurer served interrogatories and requests for production of documents on the employee.
Three of the requests for production asked the employee to produce the content of her social media sites. Specifically, the requests asked for:
The Injured Employee Objected to the Requests on the Basis They were Overbroad and Nothing More than an Electronic Fishing Expedition.
The injured employee did not object to the defendants’ request for information made public on social media.
But she did object to the requests for communications on social media sites that she had restricted from public viewing on the basis that such requests were “overreaching, overbroad, invasive and not reasonably calculated to lead to the discovery of the admissible evidence.” She also contended that the discovery was an “electronic fishing expedition” meant to intimidate or harass, and violate her expectation of privacy.
In response, the defendants argued that the social media information requested was relevant because it showed the injured employee’s activities.
The Commission Holds that the Mere Potential that Admissible Evidence Will be Uncovered on Social Media is Insufficient to Justify the Release of All Personal Content Found on Social Networking Sites
In its decision the Commission stated that the use of workers compensation discovery to get the content of social media sites such as Facebook and Instagram presents new and challenging issues.
The Commission acknowledged that an injured employee’s social media profiles may have relevant information that helps the employer and insurer defend the workers comp claim.
But it also stated its concern with the difficulty of complying with such discovery requests from a practical standpoint, as well as the potential for the violation of privacy. Noting that employees may use social media to share personal and private information with friends, family, and members of their network, the Commission stated that employees with compensable injuries may decline to file a workers comp claim or prosecute their claim and get the workers compensation benefits they deserve because of concerns that embarrassing and damaging personal information may be disclosed.
Finding that Virginia Workers Compensation Rule 1.8 requires a balancing of the competing interests of the claimant and defendants, the Commission stated that:
Before compelling access to a claimant’s private social media site, the defendants should provide credible information to show that the content of the site is of sufficient materiality to overcome the claimant’s reasonable expectation of privacy. While not finding that one rule can be applied to all cases, we agree that the mere potential that admissible evidence will be uncovered is insufficient to justify the release of all personal content that will necessarily be disclosed by responding to discovery. We find that, on the particular facts of this case, the requests are untargeted, overbroad, and violate the claimant’s expectation of privacy. The Commission has neither the time nor the staff to wade through reams of documentation “in camera” to glean therefrom bits of information that may be relevant to the defense.”
The Commission reversed the deputy commissioner, holding that the claimant did not have to produce her social media information.
Commissioner Wesley Marshall, whom the General Assembly appointed to the Workers Compensation Commission as the representative for injured workers, wrote a concurring opinion in Wright. He cited opinions from other states and jurisdictions to support the Commission’s finding that the injured employee did not have to produce the content of her social media profiles.
For example:
In Tompkins v. Detroit Metropolitan Airport, 278 F.R.3 387 (E.D. Mich. 2012), the court reviewed Federal Rule of Civil Procedure 26(b) and cases from Pennsylvania and New York to decide whether the plaintiff had to produce her entire Facebook account including material designated as private and “not available for viewing by the general public.”
Stating that “there must be a threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence,” the judge concluded that the plaintiff’s public postings were not inconsistent with her personal injury claim. The defendant, therefore had “not made a sufficient predicate showing that the material it seeks is reasonably calculated to lead to the discovery of admissible evidence.”
The judge in Tompkins also declined an in camera review of the plaintiff’s Facebook content. An in camera review is the process where a judge looks at private information submitted by a party to determine what information must be disclosed to the other party or made public. The basis for the denial was that an in camera review “is ordinarily utilized only when necessary to resolve disputes concerning privilege; it is rarely used to determine relevant.”
If you are reading this article and have already posted potentially harmful photographs and information on Facebook, Twitter, or Instagram, you are probably thinking – “Why can’t I just delete my Facebook posts?”
The short answer is that doing so may result in sanctions that cause you to lose your case.
It is tempting to destroy evidence that is unfavorable to your case. The act of destroying evidence is called spoliation.
The spoliation of evidence is not permitted in Virginia. And if you are found to have destroyed relevant evidence you could face sanctions, including an adverse inference from the missing evidence that destroys your claim.
The better route is to make your social media account private.
I understand that you may use Facebook, Instagram, Twitter, and Snapchat to communicate with friends, family members, and loved ones. And that you don’t want to stop using social media just because you were injured on the job or in a work-related motor vehicle accident.
Even so, my recommendation is to avoid using any social media account – Facebook, Tumblr, Twitter, Instagram, Snapchat, Skype, Reddit, or any other account you have – while your workers compensation case is pending.
But if you decide to use social media while receiving lifetime medical treatment or temporary total disability benefits under a Workers Compensation Award Order, or waiting for a workers comp hearing, I recommend following these tips on social media use during injury litigation:
1. Change your privacy settings. Privacy settings allow you to limit who can access your social media profile and what information visitors can see. Make sure that only your friends, family members, and people you know can view your profile. As the party seeking discovery, the employer and its workers compensation insurer must show that your social media information is reasonably calculated to lead to the discovery of admissible evidence. If you change your profile settings and prevent the defense attorney from viewing your information, you make it more difficult for the employer and insurer to meet their burden.
2. Do not post about your workplace accident or injuries. Going through an injury is difficult. And it will be tempting to use social media to connect with your support network while you are trying to recover physically, mentally, and financially. But do not post information or photographs of your injuries. Even if you think the posts or injury photos help your case, the insurer will try to use them to defend your claim.
3. Do not post about vacations you have taken or plan to take while recovering from your injuries. The insurer will argue that you cannot be as disabled as alleged if you are able to go on vacation and participate in activities on vacation when you are supposed to be recovering.
4. Do not post financial information. The insurer wants to settle your claim for pennies on the dollar. If it knows you are struggling financially, it will be more difficult to convince the insurer to pay fair value to close your workers comp case.
5. Do tell friends and family members not to post about your accident or injury. The insurer is not only looking at your social media profiles but also those of your husband, wife, children, parents, and friends. Remind them to keep anything you share private.
6. Do not post about other jobs you are working. There are many reasons you should not post about other employment when you have a workers comp case. The most important is that the insurer may argue that your other employment is the one where you got hurt or that is preventing you from recovering fully and reaching maximum medical improvement (MMI).
7. Do not minimize your injury or disability. After a work injury you may receive many posts from friends and family telling you to keep your head up and wishing you a speedy recovery. It is common for employees to respond by saying “Oh it’s not that bad” or “I’ll be better soon” so that friends and family don’t worry about them as much. But insurers will use that against you.
8. Do not post about playing sports or engaging in any physical exercises not related to physical therapy for your injury. This is self explanatory.
9. Watch out for random friend requests. Insurers are not supposed to engage in deceptive practices, such as making fake profiles and friending you to get access. But it happens. If you are in the middle of injury litigation, do not accept a friend request unless you know the person sending the request.
10. Do not talk bad about your employer or the insurance company on social media. Workers comp is frustrating. And you may be tempted to complain about how poorly your employer and its insurer are treating you after your injury. But the goal is to get the benefits you deserve and then to negotiate a top-dollar settlement. Bad mouthing your employer or its insurer online, even if you are justified, can make it difficult to meet your goal.
You may feel lost and alone after a workplace injury.
And social media can provide support.
But you have to be careful. Anything you post online can be misinterpreted or misconstrued to make it seem as though you are not as injured or disabled alleged.
Call me for help building and present your workers comp case. I’m here to help you strengthen your claim and avoid the mistakes that can cost you tens of thousands of dollars in wage loss and medical benefits: 804-251-1620 or 757-810-5614.