How does social media and other surveillance prejudice an injured workers case?

workers-comp-social-media-beware

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serious injury application, John  submitted an Affidavit stating that as a consequence of his injury he now leads a withdrawn and socially limited life and suffers from depression.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.

This, writes John, could now have serious consequences for proving that he does not have a serious injury within the meaning of the Act and any chance he may have had to common law damages could be squashed very quickly.

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?

Simple, the Facebook pages (and pictures) – if used as evidence- could be used to show that the injured worker, in this case poor John- whether intentionally or not, is not transparent/honest in his Affidavit and in his duty to the court not to mislead.

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:

medical records/reports, tax records, claim forms and records,employer records including payslips and, yep,
access to social media such as Facebook and Twitter accounts

Invasion of privacy?

It is common for a defendant’s legal team to go to great lengths to discredit the testimony of an injured worker in any possible way.

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.

beware-small-signIn 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.

It has been said that it could be argued that accessing these sites is an invasion of privacy, similarly, it has been said that it is no different than having private investigators shadowing an injured worker’s movement all day long. To many, this would seem to constitute an invasion of privacy, however, our Courts suggests otherwise.

 

[Post dictated by workcovervictim and manually inserted on behalf of workcovervictim]

 

3 Responses to “How does social media and other surveillance prejudice an injured workers case?”

  1. 1. His lawyers are at fault for not warning him.

    2. If his injury is legit then surveillance will not be detrimental to him.

    3. Surveillance is not a breach of privacy provided it is undertaken from a public place.

  2. I find this article so “offensive” if it wasn’t true it would be a joke. Basically, if you’re an injured worker who just happens to receive a lump sum payment, you’re pretty much “damed” to a life a misery and isolation. God forbid you may have a bit of “normality” in some form. Do these ignorant arseholes realize just how many opiates plus other meds it takes to actually “get moving”, and a smile on someones face doesn’t mean, for one minute, they’re not in extreme pain. Grrrr

  3. if John Doe had been advised in the early stages of his claim to shutdown all forms of social media (as many lawyers ask from their injured workers clients), would this have potentially ruled out this threat? At first glance, the answer is yes. However, who is to say that John’s trip to would not have been captured on film by insurance investigators? They’re everywhere as well, following us like our own shadow.

    While it may be a practical and prudent  to cease all social media activity while undertaking legal proceedings (or as a matter of fact simply being on workcover, huh), we should also take into account the social cost of this to [particularly seriously]  injured workers, who are  very often reliant on social media in order to stay somewhat in touch with family and friends. Most seriously injured workers are  isolated and vulnerable, not to mention depressed, because their injury effectively keeps them isolated in the house day after day and that their opportunity for social engagement is seriously affected. Most will write this too in their Affidavits.

    Are we not condemning a person already suffering from injury to a life of increasing social isolation?

    It’s just TERRIBLE that injured workers are made to feel like criminals 24/7 and that they are not ever allowed to enjoy one minute of their lives for fear that minute or second may be “captured”. For many seriously injured workers their cases drag on for YEARS… and the system as it is condemns them to a life of utter isolation, subsequent mental illness(es) -think depression, social anxiety, phobias, paranoia, disconnection, and yep even suicide.

    We have to watch our backs 24/7, never smile, never make an effort, never try to get better, look and act miserable 24/7, not leave the house, definitely not go on a weekend trip (even though you may just be sitting there, making an effort to smile on camera).

    What a life -NOT!