workers’ compensation and the role of social media: an...
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Workers’ Compensation and the Role of Social Media: An Effective Evidentiary Tool in Defending Claims Navigating Discovery, Privacy, Evidentiary and Ethical Issues to Leverage the Benefits of Social Media
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WEDNESDAY, APRIL 17, 2013
Presenting a live 90-minute webinar with interactive Q&A
Thomas O. Sippel, Partner, Leitner Williams Dooley & Napolitan, Atlanta, Ga.
Bernadette M. O'Brien, Managing Attorney of Employment Law Dept., Floyd Skeren & Kelly, Calabasas, Calif.
David L. Jimenez, Partner, Floyd Skeren & Kelly, Thousand Oaks, Calif.
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INTRODUCTION/COMMON METHODS FOR OBTAINING SOCIAL MEDIA EVIDENCE
By Bernadette M. O’Brien, Esq. (916) 920-1100 ext. 3250
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WC INVESTIGATIONS INCREASINGLY INVOLVE SOCIAL MEDIA
• Social media sites such as Facebook, and internet search engines such as Google, Bing, and Yahoo! provide valuable sources for obtaining information about injured workers/claimants;
• Defense attorneys, investigators and claims adjusters are increasingly using social media to conduct investigations (including surveillance) of injured workers as part of the discovery process;
• Introduction of social media evidence in workers’ compensation litigation will become routine;
• However, it is imperative for those using social media for workers’ compensation investigations to familiarize themselves with the issues.
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WHY IS SOCIAL MEDIA INFORMATION VALUABLE IN A WC INVESTIGATION?
Social media can show personal status updates; comments by “friends”; photos or videos of a claimant; and/or, on- or off-the-job activities or events that the claimant has engaged in.
Social media evidence often will substantiate some other evidence found in an investigation, such as a statement from a co-worker or witness, surveillance such as video, or medical records indicating the claimant is not injured, is not injured to the degree claimed, or was injured by other than the stated cause.
However, in some cases, the only information found to show insurance fraud would be the social media evidence itself.
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FORMAL PROCEDURES FOR OBTAINING SOCIAL
MEDIA INFORMATION
Depositions, requests for production of
documents and interrogatories.
Subpoenas may be issued to obtain social media information regarding a claimant. The subpoena may be issued directly to the social media website operator, which may be particularly appropriate in situations where the applicant has deactivated his or her social media account.
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HOW CAN INFORMATION OBTAINED FROM SOCIAL MEDIA BE USED?
• To establish fraud, collusion.
• Even if evidence of direct fraud may be lacking, a claimant may hurt his or her credibility if claiming a certain level of permanent impairment while participating in activities which conflict with that claim, thereby resulting in a reduction of PD.
• Locate potential witnesses.
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CASE EXAMPLES
A Los Angeles-area warehouse worker who claimed his back injury prevented him from working posted that he bowled a
perfect game on his Facebook page.
A judo instructor filed for total and permanent injury, and later posted dates he was available for class instruction.
A bronco-riding champ filed a claim, and soon after invited online buddies to attend his upcoming competition.
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QUERY: ARE SOCIAL MEDIA POSTINGS FAIR GAME WHEN CONDUCTING A WORKERS’ COMP FRAUD INVESTIGATION?
In general, most experts say yes because the
information is “public”, although the law in this area is unsettled. The reasoning is that a privacy argument is unlikely to prevail in court because a person has no reasonable expectation of privacy in whether he or she has a social media account or in what is posted in his or her profile, because the information is public.
Even if a claimant protects his or her social media profile information with privacy settings, the information is still available to at least some third parties, to whom the claimant gives access (the claimant’s "friends").
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SOCIAL MEDIA USE AND RISKS RELATED TO WC INVESTIGATIONS
• Claimant asserts a violation of the right to privacy or an ethical violation;
• Claimant asserts the attorney, investigator, employer, and/or carrier illegally used information regarding the claimant that was obtained via social media or asserts that information was unlawfully obtained.
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PROBLEM: COMPETING INTERESTS
Employee’s right to privacy and freedom of speech when using social media, versus,
Employer’s/carrier’s right to protect its business interests when using social media or monitoring employee/claimant use of social media, including as part of a WC investigation. 13
WHO IS USING SOCIAL MEDIA TO OBTAIN INFORMATION ON A CLAIMANT?
• Insurance carriers/claims adjusters
• Investigators/attorneys
• Employers (including information provided by a co-worker who is a social media “friend” of claimant)
•Anonymous tips
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COMMON METHODS FOR OBTAINING SOCIAL MEDIA INFORMATION
• Internet searches, including “googling” the claimant’s name.
• Viewing the claimant’s social media sites such as Facebook, MySpace or Linkedin, to the extent the information is “public” (some insurance companies set up special computers for this purpose so the investigator/adjuster is not using his or her own account).
• Looking at sites of the claimant’s friends.
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PRIVACY, EVIDENTIARY AND ETHICAL CHALLENGES By David Jimenez, Esq.
(818) 715-0018 ext. 7300 [email protected]
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POTENTIAL ROADBLOCKS TO USING SOCIAL MEDIA
INFORMATION IN A WC INVESTIGATION?
• Due Process
• Discovery-Motions for protective orders
• Privacy Rights of the Claimant
• Possible professional responsibility obligations/ethical considerations
• Foundational requirements
Problem:
No really clear direction yet from courts or legislature, although Quon case and NLRB advisory letters provides some guidance in terms of workplace use of social media. In California, we now have AB 1844. 17
TRADITIONAL MEANS OF INVESTIGATING A CLAIM
• Physician reports
• Applicant’s testimony
• Witnesses
• Subrosa investigations
Social Media adds a powerful new tool for WC investigations 18
USE OF SOCIAL MEDIA AND PRIVACY CONCERNS-
CALIFORNIA LAW AS AN EXAMPLE
• Use of Social Media as part of a workers’ compensation investigation may trigger a claim of invasion of privacy by the claimant.
• Allison v. WCAB (1999) 64 CCC 624 and Pettus v. Cole (1996) 61 CCC 975 (both cases contain extensive references to privacy rights).
• Privacy is also central to the California Confidentiality of medical Information Act (Civil Code 56 et seq.) and is part of the California Constitution, Article I, Section I.
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ETHICAL CONSIDERATIONS: WHAT ABOUT “PRETEXT”?
Use of social media may trigger an ethical violation claim.
For example, workers’ compensation investigators should proceed with considerable caution before “friending” or contacting a claimant through a social media site, by use of pretext (ie creating, for example, a Facebook account under a false name and “friending” the claimant).
Such “pretext” may be deceptive/unlawful and put the admissibility of the social media evidence into question.
Facebook’s user terms forbid pretext, other social media sites may also.
Note: insurance investigators in a number of states — currently 14 (California Insurance Code Section 791.03) — have the legal and ethical right to utilize pretext as long as it’s for the investigation of a suspected insurance fraud claim.
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EXAMPLE: CALIFORNIA INSURANCE CODE SECTION 791.03
“No insurance institution, agent or insurance-support organization shall use or authorize the use of pretext interviews to obtain information in connection with an insurance transaction; provided, however, that a pretext interview may be undertaken to obtain information from a person or institution that does not have a generally or statutorily recognized privileged relationship with the person to whom the information relates for the purpose of investigating a claim where there is a reasonable basis for suspecting criminal activity, fraud, material misrepresentation or material nondisclosure in connection with a claim. “
NOTE: The impact of this code section on using pretext to gain social media information is unsettled.
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Unruh v. Truck Insurance Exchange
• The California Supreme Court held that the employer’s insurance carrier intentionally committed outrageous and extreme conduct totally unnecessary to and far beyond the bounds of normal investigation and defense of a worker’s claim.
• Such conduct removes the carrier from the protective insulation of sections 3600 and 3601 which limit the injured worker to the remedies provided under the workers’ compensation act and bar actions at law.
Unruh v. Truck Insurance Exchange (1972) 7 Cal.3d 616 [Cal.Rptr. 815, 498 P.2d 1063] 22
FOUNDATIONAL REQUIREMENTS
In California, Civil Code 1708.8(g) requires that there be a "showing" that is supported by "articulable suspicion of suspected illegal activity, violation of an administrative rule, fraudulent insurance claim, or other suspected fraudulent conduct or activity".
Civil Code 1708(g) appears to require that the decision to take film or video be based on an articulable suspicion, not simply on a generalized hope that something will turn up in the surveillance. Such an articulable suspicion might be generated by a tip from a witness, co-worker or informant or at the suggestion of a treating doctor or QME. Other investigatory techniques such as an internet search or credit check may reveal evidence that the claimant may be working while claiming disability.
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FEDERAL RULES OF CIVIL PROCEDURE AND RULES OF PROFESSIONAL CONDUCT
•Most state workers’ compensation systems, while allowing some informality, are still guided by the Federal Rules of Civil Procedure (FRCP) and the Rules of Professional Conduct (RPC).
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RUSSELL PATTERSON v. TURNER CONSTRUCTION COMPANY
In a New York appellate court decision, the court held, in the part of its decision upholding the right to compel a social media site to produce claimant information, that the information must be provided as long as it:
“contradicts or conflicts with plaintiff’s alleged restrictions, disabilities, and losses, and other claims. The postings on plaintiff’s online Facebook account, if relevant, are not shielded from discovery merely because plaintiff used the service’s privacy settings to restrict access, just as relevant matter from a personal diary is discoverable…”
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SOCIAL MEDIA AS EVIDENCE IN A WORKERS’ COMPENSATION CASE
• Leverage for settlement
• Use in settlement mediations to show claimant is
exaggerating symptoms/limitations
• Use to show claimant is working/able to work
• Use to learn claimant’s interests, education and abilities
• Use the claimant’s own words against him/her
• But don’t overplay your hand! Work comp judges may not be as impressed as a jury would be.
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SOCIAL MEDIA AS EVIDENCE IN A WORKERS’ COMPENSATION CASE
– Exclusion of contrary evidence
• Serve discovery to request the claimant produce their social media
• Litigants have a duty to preserve relevant evidence that they know/should know will be requested in foreseeable litigation
• Spoliation of social media by claimant
– Proof that claimant has deleted account or removed pictures or other evidence of physical limitations/activities may constitute spoliation
» GATTO v. United airlines, 10-cv-1090 (d.Nj, 2013) 28
SOCIAL MEDIA AS EVIDENCE IN A WORKERS’ COMPENSATION CASE
– Evidence gathering tool
• Friends of the claimant may be witnesses or have relevant knowledge
• Claimant’s “likes” may show club memberships or activities they participate in
– Companies are using this to promote their products and offer discounts to people “liking” their brands
– Impeachment
• Use to cross examine claimant
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SOCIAL MEDIA AS EVIDENCE IN A WORKERS’ COMPENSATION CASE
• Instruction on “adverse influence”
• Usually use in jury cases only
• ALLIED CONCRETE v. Lester (va. S.Ct. 2013)
• Court also assessed over $700k in sanctions
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SOCIAL MEDIA AS EVIDENCE IN A WORKERS’ COMPENSATION CASE
• Vocational assessments
• Show that the claimant can perform additional work/skills
• They can use the computer, even with CRPs!
• Medical depositions
• Show the doctor the claimant is not being honest with him/her, can work, is active etc.
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HOW TO AUTHENTICATE SOCIAL MEDIA
– Obtain release from claimant
• Password
– Bad idea!
– Subpoenas to providers w/ authorization from claimant/order from judge
• Federal Stored Communications Act
– Prohibits disclosure of Facebook etc., to party other than the addressee
– Most courts have found no exception in civil cases
» Thayer v. Chiczewski, 2009 WL 2957317 (N.D.Ill. 2009)
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THE “HACKED” FACEBOOK PAGE
– Print friends list on “hacked” page
• If you find a new page w/ different name but same friends, it’s the claimant
–Monitor page to verify if account is deleted
– Subpoena claimant’s IP address from their cable/internet provider
– Seek verification from Facebook that account was not hacked
• Should not violate SCA 33
EMPLOYER RESPONSE TO SOCIAL MEDIA EVIDENCE
• NLRB may view negative employer response to social media evidence as an adverse or illegal response to protected activity;
• Doesn’t just apply to union conduct!
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FINAL POINTS TO CONSIDER
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EXERCISE CAUTION
• Still perform standard discovery and investigation including requesting medical records, possible surveillance investigations, interviews with coworkers, depositions of the claimant and possible witnesses, as well as social media/networking searches. Use social media evidence to substantiate and independently verify other evidence obtained in the investigation , and vice versa.
• Be careful about social media information obtained from employers, consider independent verification.
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RECOGNIZE THAT MORE LEGAL GUIDANCE IS NEEDED
The use of social media in the workplace, including for workers’ compensation investigations, is an UNSETTLED area of law.
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