It is a well known fact that workcover insurers (and their lawyers) are crawling all over injured workers’ Facebook pages (and other social media sites), and routinely download those pages in “evidence” in case they are later “altered”. Many [genuinely] injured workers still do not understand how stuff posted on Facebook could possibly prejudice their case(s).
How does social media and other surveillance prejudice an injured workers case?
The answer is quite simple – the injured workers’ Facebook pages could be used to show that the injured worker, whether intentionally or not, is not transparent or not honest and that s/he may be misleading the insurer, or worse, the court. Even though your own lawyers may know that you are 100% truthful and honest, a little “innocent” piece of “evidence” found (by the defense) on your Facebook page (or by any other surveillance means) could well be the opening argument of the defendant (‘s barrister), squashing your case. Things may turn that “ugly” and “twisted” that even a Judge may have to decide whether they believe your evidence!
A real example of an injured worker’s Facebook surveillance currently used as evidence in court[*name changed for obvious reasons]
John Doe [*] is 30-year-old and suffered a back injury whilst working as a butcher. He received a lumpsum payout (section 98C payment- VIC) and qualified for a serious injury [Total permanent body impairment 32%]. He is currently seeking common law damages for his injury sustained at work.
As a result of his injury John Doe has been unable to maintain the active social life that he so much enjoyed prior to his accident. He is unable to walk much or sit for longer than 20-30 minutes and can’t bend over. He takes a considerable amount of painkillers, including Oxycontin. However, one way in which John Doe is able to sustain some of his social life, and keep his sanity (!), is via social networking sites, such as his beloved Facebook.
John Doe often visits these sites to keep in touch with his mates and with his family, who is living interstate.
In his recent serious injury application, John submitted an Affidavit stating that as a consequence of his injury he now leads a withdrawn and socially limited life and suffers from depression.
While this is really very true, John Doe tried hard to make an effort to help celebrate his brother’s birthday and they organised a simple weekend trip in a cabin in the forest. John Doe took quite a few photos of the weekend trip and posted them on his Facebook page.
Now…A sneaky and snooping lawyer for the insurance (defendant) has -of course- come across these pictures after conducting some ” investigations” and after accessing John’s Facebook page (and that of his brother!), which has (some of) the pictures on his profile. These pictures show John and his brother and his mates “walking around” the forest, “collecting some wood” (for a BBQ) and fishing.
The sneaky snoopy lawyer has, in fact, now procured probative evidence, that John’s back injury might not be so serious as he states/stated.
Is this fair? Mmmh, not really, especially given that there is no “behind the scene” information at the time the pictures were taken (i.e. John tells us he took a double dose of pain killers, and just “posed” for most of them). However, the pictures are “there”.
How exactly does this now prejudice an injured worker’s case?
Lawyers acting for John know that he is truthful and totally honest, but this “piece of evidence” may well be the opening defence of the insurer’s barrister “unravelling” of the case. And there may be nothing John’s legal team can do!
The Judge may also have to decide whether s/he believes the injured worker’s evidence, says John’s barrister! The judge may be convinced that John has a back injury, but how can s/he be sure that it is a serious injury within the meaning of the Act?
Fact is, according to those pictures on Facebook, John was out with his brother and mates on a weekend trip, that is, John was physically coping [if the photographs taken are any evidence]. So, the injury might not be so serious after all.
The point being is that the onus is on the injured worker to prove that s/he has a serious injury. Such Facebook (or other surveillance) evidence can make the task even more difficult than it already is. What is the judge is unsure himself?! You can just imagine… your chances of convincing a judge or a jury that you actually do suffer from a serious injury become pretty slim indeed…
Defendant’s right to information & pre-trial “discovery”
Insurer’s lawyers (defendant) have the right to seek discovery during the pre-trial stage of litigation (court proceedings).
Rest assured that the types of evidence sought will always include:
Invasion of privacy?
One of the most common means is to put an injured worker under surveillance. In what many would call an invasion of privacy, it has become easier for the defendants (insurer) to further push back the boundaries of privacy by actively pursuing details of a person’s social life through their use of social media.
In terms of privacy, Facebook along with other social networking sites have a policy that informs the user that the company cannot guarantee that only authorised users have access to their information. So technically speaking, the user does not really own their Facebook page or twitter account and this means it is open to be publicised and scrutinised by a defendant’s [insurer] lawyers.
Gaining unauthorised access to a person’s social accounts is not difficult, but it is made easier if a user has not taken steps to set stringent privacy restrictions on their account.
[Post dictated by workcovervictim and manually inserted on behalf of workcovervictim]