That seemingly harmless tweet, Twitter or Facebook status update or location check-in may be divulging more than you realise. As injured workers put more information about their medical, professional and personal lives on social media networks, workcover insurers (and employers) will find it easier and less expensive to obtain surveillance on injured workers in workcover cases than ever before. What could be more credible than injured worker’s own admissions, in writing? Nothing!
Workcover will snoop into your social media sites
When can a person be in their own home, alone, with the windows and doors closed and have a limited expectation of privacy? It may sound perhaps like the beginning of law school exam question, but this is something we must think about every day. The answer is when that person (injured worker) is using social networking websites. With the surge of social networking websites, including Facebook and Twitter, it is easier and less expensive to obtain surveillance on injured workers in workcover cases (especially in litigation) than ever before.
Within the past five years or so, Courts have all noted that there is no, or very little, reasonable expectation of privacy when an individual/injured worker chooses to disclose information, even on websites. We have published many legal cases where the surveillance was damaging, i.e. Supreme court rejects compensation claim based on surveillance; Injured worker secretly videoed conducting massage on the private investigator!; Work injury not serious enough for common law – exaggeration & surveillance; Employer and workcover QLD blame injured worker for own carelessness & use Facebook pictures to defeat K300 claim; etc. [See the Tags Legal Cases and Surveillance for more examples]
A QLD court has very recently reduced the amount of damages payable to an injured woman because the description of her injuries did not match her social media posts.
The injured woman stated in Court documents that her injuries had severely impacted her domestic, social and academic life. She stated that she suffered ongoing back and neck pain, which were worsened by various activities of daily living.
However, social media accounts presented before the Court indicated that she had a healthy social life and attended music festivals and other events. It also contradicted her evidence as to what she planned to do for work after completing her studies. As a result, while she still received some compensation, it was considerably reduced as “her account of her pain and suffering could not be accepted” according to the Judge.
This case (and many similar ones) serves -again- as an urgent reminder to please monitor what you post on social media sites and also to please strengthen your security settings (incl, not accepting friendships from unknown people).
For many years now, and increasingly with the advancement of technology, injured workers (and TAC victims) have been the subject of covert surveillance by insurance companies.
Many times these potential damaging sources are overlooked by injured workers while litigating workcover cases but they are routinely scrutinised, searched and saved by workcover insurers and their PIs. Many times a simple search on Google can provide enough information to start a search!
Be warned that precautions must be taken by ALL injured workers.
Whilst one cannot entrap the injured worker by for example sending him / her a connection requests, many case managers and PIs do under disguise and will be very quick to download or print your screen(s).
Thinking of spying on your case manager? Think again!
We recently received an email form an injured worker sharing that they found out their case manager had called a PI asking how to proceed because she had been notified that an injured worker would like to be her “friend.” She had several concerns, the first of which was her own privacy. After printing the screen with the request, she accepted the invitation late one night when she hoped the injured worker would not be online. She printed what was useful and then “unbefriended” the injured worker…
…They basically take a onetime chance that there is useful information on the page when they look. They also hide all of their information from the (naive) injured worker. This obviously causes many people to feel vulnerable and paranoid (but not enough!). And the injured worker might figure out that their case manager(s) or a PI are observing his activity and end the connection.
On some social networking sites, including Twitter, it is not required to be someone’s “friend” to observe his or her activity. A workcover case manager recently advised (our insider) that a injured worker had back surgery booked. The insurer was in fact not even aware of the scheduled surgery; they had not received any medical records confirming this allegation, causing [our informant] to question the case manager’s source. Her response was simply “the horse’s mouth,” along with a printout of the injured worker’s Twitter page.
Other cases have included injured workers revealing holidays, drug use, employment, or photographs of activities that they deny the capacity in which to be involved. All of these types of activities can be presented to the judge /Court (and doctors) during litigation or to an IME.
As is well established that the rules of evidence are not strictly adhered to in workcover matters. This basically prevents any set rules on the presentation of this evidence to a Court/Judge (etc.) and what must be established to authenticate the evidence. If there are pictures attached to the website, the insurer will generally have an easier time establishing that the information relates to the injured worker in a particular case.
In some instances, they can request that the court order the injured worker to permit access to even non-public portions of their social networking pages. In order do so, they must however substantiate that the information on the public portion of the website leads to an inference that there is additional information related to the claim in the non-public pages. The reality is that the injured worker will most likely delete or alter the information before the court makes such a determination, and hence workcover et al will be desperately try other means of accessing your information (and download it as evidence).
What this means to the injured worker
The use of social networking sites for discovery purposes is not only useful, in many cases it is recommended by workcover (defense lawyers and PIs)
Our informant tells us that if the workcover insurer (i.e. case manager) needs assistance with a search, they should contact their in-house lawyers/counsel for additional advice. If their search provides what appears to be useful information, including pictures of an injured worker actively participating in hobbies or activities which are beyond his /her alleged physical abilities and they believe there are additional pictures contained on the injured worker’s webpage, they should advise their in-house legal counsel. Our informant furthermore shares that workcover insurers routinely teach their employees (i.e. case managers) that it is important to act quickly and decisively, potentially filing with the court to avoid the destruction or deletion of any useful website information. They also routinely teach that while it is important to perform searches on all injured sods, it is also important to protect their own (the case manager/PI etc) own privacy during the search.
Again, you have been warned !
PS this is also the reason why we no longer update or respond to our Facebook page – not that we have anything to hide, we simply do not want to encourage any other injured worker of using FaceBook and connecting with us, as it will simply make workcover’s desperate spying even easier!
[post dictated by WCV and manually transcribed on her behalf]
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