4-1-1 on Comp: Social Media and Misrepresentation Defenses in Work Comp

Bruce Burk

Sarasota, FL (WorkersCompensation.com) – Anyone who’s anyone has a Facebook these days. To most people, social media is a way to connect with friends and post funny pictures. However, social media can also be used in investigating workers’ compensation claims.

Recently, in California, social media was used to demonstrate that a Claimant received up to $24,000 in workers’ compensation benefits on a fraudulent basis. Shawna Lynn Palmer alleged that a left foot injury made her unable to work.

Specifically, she said that she could not put on a shoe or use her foot at all. However, social media videos showed Palmer participating in a beauty pageant where she was walking across a stage in high heeled shoes only a few months after the industrial accident.

Pictures from social media can be a great tool in establishing a misrepresentation defense. However, employer/carriers should always consider how the pictures will be authenticated. Pictures are authenticated into evidence if they fairly and accurately represent what it alleges (to depict and that it has not been altered in any way).

If images are used from social media, it is best to use color images that depict the date of the image. The pictures will need to be shown to the Claimant or another witness to lay a foundation that it is, in fact, the Claimant who is in the picture. The same goes for video or audio evidence.

However, photographs and video are not the only evidence that can be taken from social media. Social media posts that contain text entries by the Claimant that describe physical activity near the time it takes place can also be used. Moreover, if the claim involves psychiatric conditions, any mental impressions of the Claimant could potentially be used for defenses.

When using a prior statement by the Claimant, it will have to come not only from a foundation objection, but also include objections to hearsay and relevance. The posts would ostensibly be relevant if they deal with physical activities or the mental impressions of the Claimant.

If offered by the Employer/Carrier, the posts would consist as a statement by a party opponent which is either non-hearsay or an exception to hearsay depending on the state and investigator or the Claimant can authenticate the post. If for some reason that does not work, the posts can be used for impeachment purposes without being admitted into evidence. Here, the posts would not need to overcome the same objections because they are being used to attack the witness’s credibility, not establish a fact.

Some may seek to delete social media posts to avoid the predicament that this creates. Those attempts may be in vain due to sources such as the Internet Archive, which keeps a record of most websites on a daily basis.

So even if posts are deleted by a user, they may still be found using sources like these. With California and other states prosecuting those who commit misrepresentations, injured workers should think twice about trying to taking advantage of the work comp system.