Social media may be used as evidence against a workcover claim & compensation

facebook-surveillance-workcover

As we’ve said over and over again,  workcover victims can be caught unawares by seemingly innocent uses of social media (such as Twitter, Facebook) some of which might seriously damage their claim for justice and injury compensation in the courts. The use of social media as evidence against the legitimacy of an injured worker’s claim to serious injury is growing, and fast. The following real example shows how Facebook, Twitter and other social media sites may be used as evidence against a claim for injury compensation.

Social media may be used as evidence against a workcover claim & compensation

facebook-surveillance-workcover

How Facebook, Twitter and other social media sites may be used as evidence against a claim for injury compensation

Example case of a Victorian injured worker

Anna (name changed) is a 32-year-old worker with a severe back injury that she suffered in the course of her employment as a supermarket worker. She received a reasonable permanent impairment lump sum payment (aka section 98C-VIC) payment and is now seeking common law damages for her injury. Anna was assessed with a WPI of 22% by a medical panel, and as such does not meet the quantitative (deemed) serious injury threshold (30% in Vic), however given the detrimental consequences of her injury on her life, her lawyer is lodging a serious injury application (using the qualitative/narrative test) in Court.

As a result of her injury Anna has been unable to sustain the active social life that she enjoyed prior to her workplace accident. She has also become very depressed and isolated and,virtually, the only way in which Anna is able to maintain her social network is via social networking sites, namely Facebook and the occasional Twitter.

Anna uses these social media sites to keep in touch with her friends and with her family, most who living interstate.

In her serious injury application, Anna submitted an sworn Affidavit stating that as a consequence of her injury she now leads a very painful, withdrawn, inactive and socially limited life and that she is susceptible to severe bounds of depression.

While this is all very true, Anna is keen to make an effort to help celebrate her best friend’s hen’s party and they have organised a weekend trip along the Great Ocean Road. Anna is  keen photographer, and takes many pictures of the hen’s weekend and … decides to post them on her Facebook page.

Unfortunately, a diligent lawyer (and also a PI) for the defendant (insurer) has come across these pictures after conducting some investigations and has accessed Anna’s Facebook page, which has the weekend pictures plastered all over her profile.

These pictures show her and her friends setting up beach tents, collecting shells, swimming and playing in rock pools, peer fishing  and walking, (even dancing!) around the beach, including climbing on rocks. Arrggh…the defendant’s lawyer has now procured probative evidence, that Anna’s back injury might not be so serious after all. Certainly not as serious as she made out on her Affidavit. Little do they know that in order to participate in the weekend activities, Anna took double amounts of powerful painkillers (endone, oxycontin) and enhanced their effect with drinking of some alcohol!

All this – of course- could have serious consequences of proving that Anna does not have a serious injury within the meaning of the Act and any chance she may have had to common law damages could disappear as quickly as the fish Anna was trying to catch in the rock pools.

How exactly does all this prejudice or damage an injured worker’s case?

Specifically, if used as evidence, the Facebook pages (which are downloaded!)  could be used to show that the injured worker, whether intentionally or not, is not transparent in his/her Affidavit and in his/her duty to the court not to mislead.

Lawyers acting for Anna know that she is totally truthful and honest, however this piece of evidence may well be the opening defence of the defendant’s barrister unravelling of the case.

Additionally, a Judge will have to decide whether they believe the injured worker’s evidence. The judge may be convinced that the injured worker has a back injury, but how can they be sure that it is a serious injury within the meaning of the Act? If the photographs taken are any evidence, Anna appeared to be physically (and emotionally) coping…. with bending over repeatedly collecting shells, climbing on and between rocks, hopping on the beach etc. Her claimed injury might not be so serious after all.

The point is that the onus is on the injured worker (and his/her lawyer) to prove that he or she has a serious injury. Such evidence can make the task even more difficult than it already is. A fairly strong and painful case for the injured worker has now suffered a significant blow that the judge is even unsure himself!

The defendant’s right to information and Pre-trial “discovery”

Generally, an insurer’s lawyers (defendants) have the right to seek -what is called – “discovery” during the pre-trial stage of litigation. The types of evidence sought generally include:

  • medical records/reports;
  • tax records;
  • claim form(s);
  • employer records;
  • payslips;
  • access to social media such as Facebook and Twitter accounts (and other social media sites); and
  • covert surveillance (of course)

We are not aware of any caselaw(*) or guidance from the Court with regard to discovery and/or social media. We do know that the Australian Law Reform Commission posted some papers on social media. However, the grounds on which social media can be demanded as part of discovery is yet to be fully explored and tested within Australia Courts.

(*) We have however published a few legal cases where surveillance (incl social media) was used in court against injured workers. For example: Important info that any injured worker should know – be HONEST

From a comparative point of view, there have recently been a couple of cases on the issue of pre-trial discovery and social media that have been heard in the New York Court of Appeal. It would appear that as a result of these cases, the Courts are allowing access to material on social networking sites provided that the information sought is relevant and the request falls with acceptable discovery standards.

Invasion of privacy or legitimate accountability?

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 became easier for the defendants to further push back the boundaries of privacy by actively pursuing details of an injured worker’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 lawyers.

Gaining unauthorised access to a person’s social networking accounts is not a hard thing to do. It is made easier if a user has not taken steps to set stringent privacy restrictions on their account. Even the most prudent and technologically-savvy forget to do this.

Whilst it could be argued that accessing these sites is an invasion of privacy; similarly, it is no different than having private investigators shadowing a client’s movement all day long. To many, this would seem to constitute an invasion of privacy, however, our Courts unfortunately suggest otherwise.

Some practical tips please

Referring to Anna’s case, there are really two avenues that you can pursue.

  1. The first being that all lawyers and advocates should advise their clients to shutdown all forms of social networking
  2. and the other is to keep them activated.

In terms of Anna’s case, if Anna had been advised in the early stages of her claim to shutdown all forms of social media, would this have potentially ruled out a threat to the authenticity of her evidence? At first glance, the answer is yes. However, who is to say that Anna’s trip would not have been captured on film by private investigators, or extracted in the witness box by counsel?

While it may be a practical and prudent measure to advise an injured injured to cease all forms of social media activity immediately, it is legitimate also to take into account the social cost and ramifications of this course to the injured worker, who is often very reliant on social networking in order to stay in touch with family and friends.

Indeed most injured workers state in their Affidavits that they feel isolated and vulnerable because their injury effectively keeps them isolated in the house day after day and that their opportunity for social engagement is seriously impaired.

With their relationships under stress, endless pain, adversarial issues with workcover etc,  they then become prone to many forms of depressive illness. Certainly, it is our experience that many (seriously) injured workers come to rely on social media to stay connected. Are we not condemning a person already suffering from injury to a life of increasing social isolation? What practical guidance can be given, that would allow an injured worker access to social media, but within certain limitations?

Summary

The use of Social media is definitely a growing source of , eh, discomfort for all those working for justice for injured workers. The solutions that at first hand appear to be acceptable – shutting down all social media contact- unfortunately carry profound personal and social implications for an injured worker’s well being. However one must really weigh up the risk!

While plaintiff law is still struggling to catch up with social media in Australia, lawyers for the defense are increasingly getting open access to sometimes unfairly used social media evidence.

 

Note: Even though Anna explained to her lawyer (and the Judge) that she had taken double amounts of powerful painkillers (endone, oxycontin) and increased their effect with drinking of some alcohol, just in order to participate in the activities, and that she was extremely sore afterwards (necessitating bed rest for days)…the judge did not believe any of it, the photographic evidence too overwhelming. Anna (and her mortified lawyer) lost her serious injury application and her right to commence common law damages.

 

You can read all our articles related to workcover surveillance, incl social media here

 



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