Stop.....and Back Away from your Facebook Page

Posted by Dean Blackaby | Jan 17, 2017 | 0 Comments

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Being an injured worker doesn't mean that your life stops.  As a practical matter, life goes on for individuals and families of injured workers. Just because someone is hurt, doesn't mean they disappear. Frequently, it results in spending more time online learning about medical conditions, workers' compensation benefits and unfortunately, killing time on Facebook.  Social media is a magnet for discussion and sharing personal information.  Unfortunately, it is not private. 

Users of Facebook and other social media often seek to portray themselves in the best light possible – doing things they enjoy like hunting, fishing, cycling, skiing, snowboarding and generally living the good life.  But often those shared sentiments are not an accurate reflection of how life is going.  People also sometimes share the bad things that happen to them…accidents, slip and falls, ugly events at work.

For most people, those inconsistencies don't matter. But for an injured worker, those inconsistencies may be revisited to challenge your credibility. It is never comfortable to be sitting in court or in a deposition and be accused of being a liar.

Are you telling your doctor the same thing you are telling the rest of the world? 

What did you say to your friend  who lives seven states away and you haven't seen since you graduated high school in 1983?  

Did you tell your claims adjuster the same details you told the guy who sat in front of you in second grade when discussing your accident?

Did you pull up a picture of the moose you tagged during your hunting trip from last year and not tell your "friends" that it was in November of last year, not this past November? 

Part of the litigation process includes a phase called “discovery.”  The parties are allowed to post questions in writing, ask questions of witnesses including the injured worker under oath.  Now imagine that you have an injury to your hands and are asked the following “interrogatory” to which you must provide an answer under oath:

For each Facebook account maintained by you, please produce your account data for the period of its inception through the present relating in any fashion to the use of your hands whether it be driving or any activity, your current and past employment, your physical activities, work, or any other manner likely to lead to the discovery of relevant information relating to your claim.  You may download and print your Facebook data by logging onto your Facebook account selecting, “Settings” and then under “General Account Settings,” clicking the link to “download a copy of your Facebook Data.”

Do you remember all of the pictures you've posted since your injury?  Do you know how many times you shared your status?  Commented on what you were doing?

The “interrogatory” above came before the Montana Workers' Compensation Court in 2015 (T.B. v. Montana State Fund, 2015 MTWCC 18).  The petitioner objected to the discovery request on the grounds that it invaded her constitutional right to privacy.  Her argument failed and she was given 20 days to produce her Facebook data relevant to the questions posed.

More recently, the Montana Workers' Compensation Court found a claimant's testimony not credible based in part upon a post she made to her Facebook account while in the hospital following an injury:

 …. In addition, none of the alleged witnesses to Stephens' conversation with O'Banion support Stephens' version of events, and Stephens' contemporaneous Facebook message, which correlates with Elliott's testimony, made no mention of O'Banion directing her to run the course.  The Facebook message is more credible than Stephens' later claims that O'Banion directed her to complete the obstacle course.  Although Stephens alleges that her Facebook message was inaccurate because she was hospitalized with a head injury when she wrote it, this allegation is undermined by the accuracy and detail of the rest of the message.  Because this Court finds Stephens' testimony regarding her conversation with O'Banion incredible, it further finds that O'Banion did not direct Stephens to run the obstacle course.                                  

                                                       -Stephens v. Montana Association of Counties, 2016 MTWCC 16, ¶35.

The two cases cited above didn't happen in some other state – these are Montana workers' compensation cases.  Insurers are savvy to social media and engage fraud investigators to search social media platforms. Adjusters are by nature curious and will check the newspaper and social media sites for your name.

 While Facebook may be an entertaining, it has the capacity to damage your workers' compensation claim. The best of course of action would be to resist the urge to share personal details.  Your friend seven states away doesn't need to know all the details of your life at the expense of your benefits. If you can't tear yourself away and need to comment, do not make it personal and certainly do not share details of your injury, the accident or your claim in any way.

 For more information – watch the video.

About the Author

Dean Blackaby

Attorney representing individuals hurt at work; mediation of workers' compensation disputes; settlement consultant focusing on Medicare Secondary Payer compliance and Medicare set-asides.

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