Posts Tagged ‘Facebook’

Social Media as Evidence: Good Times Yield Bad Results

Monday, February 6th, 2012

ABC news has picked up a story out of Arkansas: Zack Clement suffered a hernia while moving a refrigerator for his employer, Johnson’s Warehouse Showroom. He underwent multiple surgeries, but the pain lingered, so he filed for a continuation of benefits. Among the pieces of evidence at his trial were party photos posted on his Facebook page, which show Clement drinking (and little else). When his claim for reinstatement was denied, Clement appealed, citing the unfairness of the Facebook evidence.
ABC wrote as follows:

In an opinion, written by Judge David M. Glover, the Arkansas Court of Appeals states: “We find no abuse of discretion in the allowance of photographs. Clement contended that he was in excruciating pain, but these pictures show him drinking and partying.”
“Certainly these pictures could have a bearing on a Clement’s credibility, albeit a negative effect that Clement might not wish to be demonstrated to the ALJ or the Commission, ” Glover continues. “We hold that there was not an abuse of discretion in allowing the photographs.”

Justice in the Details
At first glance, the judge’s comments might be cause for alarm. An injured worker suffering from chronic pain might well be capable of having a few drinks with friends. (One can only hope that the alcohol does not interfere with any prescribed -or unprescribed – pain medications.) If the photos were the primary evidence of Clement’s condition and the basis for denying the claim, Clement would have good reason to object. However, this is not the case.
In the course of his carefully reasoned findings, Judge Glover reviews in detail the medical history of Clement’s claim. Even after multiple surgeries and several changes in treating doctors, Clement complained of ongoing pain. Extensive medical testing revealed no abnormalities and no evidence for the pain itself. He has been released to full duty. It is this detailed history and the lack of medical evidence that lead Glover to conclude that any further treatment would fall outside of the workers comp system. The Facebook photos are by no means the foundation of his findings. Nonetheless, he decides that the photos are a legitimate piece of the case file and admissable as evidence.
In my limited experience, Facebook seems to be a platform for superficial news and, for the most part, images of the good times. It is difficult to imagine that Clement would have used this public forum to post pictures of himself suffering excrutiating pain. If he had chosen to do so, this might have provided evidence in his favor. However, his friends would likely have chided him for being such a downer and even then, the court might have dismissed the images as theatrical exaggeration.
Facebook may now be the preferred means of presenting our personal narratives, but it is unlikely to help us make our case in a court of law.

Health Wonk Review’s Health Policy Heat Wave and assorted work comp news briefs

Thursday, August 4th, 2011

Joe Paduda has posted a steamy Health Policy Heat Wave edition of Health Wonk Review over at Managed Care Matters. He notes that “Far from the summer doldrums, activity related to the debt limit, IPAB, Medicare reform and Health Exchanges is at a late-September pace.” Get in on the action, Joe always hosts a lively and informed edition.
Coming & Going – Roberto Ceniceros discusses the compensability case of a NC public school principal who was shot while driving to work. This is an interesting case because the principal was conducting phone business on a school-issued phone while commuting and he was also paid for travel expenses. He was awarded benefits, but the case is headed for appeals court. Ceniceros notes that injuries that occur during a commute generally are not compensable. He also notes that this might be some of the earliest case law on this issue. And with the brave new world of ubiquitous work enabled by mobile devices, it surely won’t be the last.
Radical change – Peter Rousmaniere talks about the recent Illinois workers’ comp reform and the radical change that the reform signified for workers’ comp, change that he notes has largely gone unnoticed. He discusses two significant issues that surfaced in the reform: the “nuclear option,” which Rousmaniere noted “freaked out almost everyone” – yet despite the dramatic language, an opt-out or non-subscribe program has long existed in Texas. The second issue that he notes is “an easy-to-overlook provision” that allows for union carve outs, which he discusses in greater detail. Peter’s take on all things workers’ comp is always well worth reading.
FL CFO tackles check-cashing fraudWorkCompWire reports that the Florida CFO will be reviewing check cashing services for collusion in workers’ comp fraud, which is said to be diverting more than a billion dollars from Florida’s economy. According to CFO Jeff Atwater, this latest workers’ compensation premium scheme is highly organized and orchestrated by individuals who know the construction and subcontracting industry and are intent on evading payment of workers’ compensation premiums.
MA AG recoups millions in drug overcharges – In the latest of a series of settlements, Rite-Aid will pay $2.1 Million to resolve allegations of prescription drug overcharges. The settlement is the 5th in a series of similar settlements, the result of an investigation by Attorney General Coakley’s office into prescription drug overcharges by pharmacies to public entities under the workers compensation insurance system. Settlements now total $7.9 million. Walgreens recently settled for for $2.8 million. Other pharmacies with settlements include CVS, Shaws Supermarkets, and Stop & Shop. Recouped money will be returned to cities and towns.
OH BWC publishes Facebook fraud page – If you commit workers comp fraud in Ohio, you may find your photo on Facebook. Yesterday, we posted about workers’ comp and social media, so we were interested to see that the Ohio Bureau of Workers Comp has launched a special investigations Facebook page. It will include news on recent investigatory action, a most-wanted section and a link to report fraud. The page can be found at
World’s scariest job? – If not the scariest, it certainly is a contender: Chinese Road Workers. For other scary jobs, see our post on the workers on the cruise from Hell and the untethered tower workers. I’ll stick with blogging, thanks.
Quick takes

Social media and workers comp

Wednesday, August 3rd, 2011

Are Facebook, Twitter and other social media postings fair game when conducting a workers comp fraud investigation?
We’ve posted on this topic previously, including a reference to a successful Facebook-related investigation conducted by New York State Insurance Department’s Fraud Bureau: social networking, workers comp & the law. Now, two of the experts that we cited in that post – Professor Gregory Duhl of the William Mitchell College of Law and attorney Jaclyn Millner – have a new article that is worth your attention: Social media and insurance fraud.
In the article, they answer our opening question with a strong affirmative, making a comparison between internet searches of public social networking profiles to the more common fraud investigation tool of video surveillance of property-casualty claimants. In fact, they make the case for why insurance investigators should be spending even more company time on Facebook, suggesting that postings or photos can substantiate some other evidence found in an investigation. While privacy issues are of concern, they state:

A privacy argument is unlikely to prevail in court because a person has no reasonable expectation of privacy in whether he or she has a social networking account or in what is posted in his or her profile. Even if a claimant protects his or her social networking profile information with privacy settings, the information is available to at least some third parties, to whom the claimant gives access (the claimant’s “friends”).

Some courts have gone so far as to say that there is no privacy interest in information stored on the internet because even if information, such as social networking information, is protected with privacy settings, it could be accessed by certain members of the public.

The recent case of Romano v. Steelcase Inc. shows that anything posted on Facebook or any other social networking site, whether the user has privacy settings or not, is likely discoverable.

Social Media & Employment Law
The social media landscape is dynamic and the courts are grappling with many thorny issues. If it isn’t one of the top issues you are tracking in employment law, it needs to be. While fraud investigation is one area of interest, there are many other significant issues: how social media is used in hiring and pre-employment screening; social media policies in and out of the workplace; monitoring employees in the workplace, and more. Here are some good resources to help you keep current with the dynamic intersection of social media and employment law:
Think Before You Click: Strategies for Managing Social Media in the Workplace is a newly released book that we can’t wait to read. The book’s authors and editors are among some of the legal authorities we most frequently turn to on the topic of social media – several are practicing bloggers. We would particularly cite the following two authors, who frequently blog on social media:
**Employment Law Attorney Jon Hyman: Ohio Employer’s Law Blog
**Employment Law Attorney Daniel Schwartz: Connecticut Employment Law Blog
And from the plaintiff perspective, we would recognize attorneys Jon Gelman and Alan S. Pierce who paired up for a podcast on Privacy, Clients and Social Media. Gelman frequently posts about social media on his blog, Workers’ Compensation (which is well worth reading on other topics, too). He also has authored articles on social media, such asFacebook Becomes a Questionable Friend of Workers’ Compensation.

Risk, ADA, OSHA, fraud & other workers comp news notes

Wednesday, April 20th, 2011

Risk roundup – Check out this week’s Cavalcade of Risk.
Americans with Disabilities – This week’s must-read is Dan Reynold’s essay in Risk & Insurance: Disability in the Second Act. He says, “… it’s not that the amended act, which goes into effect on May 24, represents a new game. It’s that the amended act has returned the ADA to its original, intended scope.” The article offers advice for employers to prepare for the changes.
OSHA gets tough on distracted driving – If your employees are texting while driving, the stakes just got higher. Jon Gelman posts about OSHA’s plan to fine employers for distracted driving accidents. This is part of OSHA’s initiative to reduce transportation accidents, the top cause of worker fatalities. Gelman says, “OSHA will investigate motor vehicle accidents, including cell phone records, and will issue citations and fine employers where an accident involved texting while driving. While OSHA has jurisdiction over employers, and not employees, it hopes to encourage all employers to declare motor vehicles a “text free zone.” More information and resources at the OSHA Distracted Driving page.
Fraud – to paraphrase the common horror film trope, “the fraud is coming from inside the house. When people refer to workers comp fraud, more often than not they are talking about employees. But as we’ve noted many times, employer fraud such as misclassification, is also a huge and costly problem. There are other players too – such as doctor mills, dishonest agents, and this week, Roberto Ceniceros points to a fairly egregious example of TPA adjuster fraud.
Limits on comp for PTSD?SafetyNewsAlert talks about legislative efforts to curb permanent workers’ comp coverage for mental distress. A bill that is currently under review in Maine is drawing opposition from first responders. Here’s more on the proposed Maine legislation.
Dangerous technologies – In the new and emerging health risks department, we bring you Facebook Depression. Add this to the many other emerging technology-related maladies: Blackberry Thumb, Cell Phone Elbow, IPod Ear.
News briefs

Social networking, workers comp & the law

Wednesday, September 22nd, 2010

In the past, we’ve featured assorted news items about how employers and insurers are turning to social networks to monitor employees for potential fraud. In fact, just last week, we learned about how the New York State Insurance Department’s Fraud Bureau recently cracked a case as a result of a Facebook posting. But social media and how it intersects with workers compensation is all still pretty uncharted territory.
Given this, we were delighted to learn of a recent paper specifically dealing with this area of law: Social Networking and Workers’ Compensation Law at the Crossroads, authored by Gregory M. Duhl of William Mitchell College of Law and Jaclyn S. Millner of Fitch, Johnson, Larson & Held, P.A. It’s a substantial document – 75 pages, to be precise, that looks at the use of social networking evidence in workers’ compensation litigation. It’s scheduled to be published in the Pace Law Review, but you can download a free copy of the report at the above link. We’d encourage you to run, not walk, to get your copy – it’s interesting, well written, and thoroughly annotated, and you don’t need to be an attorney to find it valuable.
We think that the remarks which the authors make at the conclusion of their paper do an excellent job of explaining the importance of both the issues at hand and the value of this work in particular, so we are taking the liberty of reproducing them:

“The lawyers, judges, insurance companies, and parties within workers’ compensation systems will increasingly confront the discovery, privacy, professional responsibility, and evidentiary issues that arise at the crossroads of workers’ compensation law and social networking. In the absence of case law and ethics opinions that discuss these exact issues, this article starts with the rules that govern workers’ compensation cases, and discusses how they might apply to lawyers gathering, producing, and introducing evidence from social networking sites. But this article is only a starting point. As workers’ compensation systems are built on efficiency, flexibility, and discretion, workers’ compensation is an ideal area of law for lawyers and judges to experiment with how to address some of the unique challenges and opportunities that social networking poses in litigation.

While there is a lack of legal authority on these issues, that should not cloud the reality that many employees are using social networking in their daily lives. One thing of which we are certain is that lawyers who practice in the workers’ compensation field need to be able to navigate around social networking sites such as Facebook, LinkedIn, and MySpace, and know how they work. Social networking is no longer a new technology, and ignorance should not be an excuse to the applicability of evidence from social networking sites in litigation.”

In the spirit of those remarks, we’d like to leave you with this video clip which gives a good overview of how social media is changing the landscape. Startling as it is, it’s already almost a year out of date.

Health Wonk Review and other noteworthy news briefs

Thursday, March 18th, 2010

It’s Health Wonk review week, and Minna Jung serves up the March Madness of both the basketball court and the health care reform process in this week’s Health Wonk Review. Visit this week’s post at the Robert Wood Johnson Foundation’s blog The Users’ Guide to the Health Reform Galaxy.
Employer trends

  • Laura Petrecca of USA Today writes that employers are increasingly using technology to track and monitor employees. They do so for a variety of reasons, including monitoring to ensure productivity; to ensure that trade secrets are protected, and to ensure maintenance of professional and lawsuit-proof workplaces. Next month, the U.S. Supreme Court will hear a case that will explore privacy rights for employees when using employer-supplied devices. View some of the tech monitoring techniques that are being used.
  • NPR has been running a series on work-life balance and the increasing number of employers who are turning to flexible work schedules. You can read more about it at HR Web Cafe: Work-Life Balance and Flex Work.
  • Employee compensation costs – Private industry employers spent an average of $27.42 per hour worked for total employee compensation in December 2009 (PDF), according to a report issued last week by the Bureau of Labor Statistics. Wages and salaries accounted for 70.8% of these costs, while benefits accounted for 29.2%. Of the benefits, 8.2% were for the cost of legally mandated benefits.

CT crackdown – Connecticut employers take note – Attorney General Richard Blumenthal is planning a crackdown on workers that are misclassified as independent contractors. “Among the commission’s recommendations: increase the penalty from $300 per violation to $300 a day per violation, strengthen criminal sanctions against misclassification and jointly investigate misclassification complaints with other state agencies.”
Immigrant workers – In light of a recent Iowa Supreme Court ruling in a case involving a nonresident alien, Roberto Ceniceros posts about immigrant workers and benefit complexities. To stay current on other related issues, we refer you to Peter Rousmaniere’s Working Immigrants.
Toxic chemicalsThe Environment News Service writes that the Obama administration is giving mixed signals on right-to-know for toxic chemicals. On the one hand, to increase transparency, the EPA is providing free web access to the Toxic Substances Control Act Chemical Substance Inventory. This is the first time that employers will have access to thousands of industrial chemicals in the agency’s database. But in a move that seems at odds with the administration’s stated commitment to transparency, OSHA is proposing a reduction in the hazard warning information that chemical manufacturers must provide to workers, customers and other users. OSHA denies that it is weakening protections, and according to the article, claims that it is “merely trying to conform with global labeling rules and that manufacturers often disagree with the cancer hazard evaluations and other advisory information.”
Medical marijuana – We suspect we’ll be seeing more stories like this: Walmart fires Michigan man for using medical marijuana.The store fired 2008 “Associate of the Year” Joseph Casias when he failed a drug test. Casias has sinus cancer and a brain tumor and has an authorized medical marijuana card. He uses marijuana to control pain at night, but claims that he is never under the influence at work. (See our past posts on this topic: The current buzz on medical marijuana and the workplace and One toke over the line.)
Kemper runoff – Hard to believe that it’s been six years, but the Kemper runoff saga is nearing conclusion, according to Business Insurance. Some call this “one of the most successful runoffs in history,” but not all agree. Some are waiting for liquidation to see if they will fare better than the reported 25 cents to 50 cents on the dollar that claims are being settled at:

“A decision to wait for liquidation or settle beforehand should depend on a cost benefit analysis that includes evaluating whether state guaranty funds for workers compensation claims are likely to pay for the majority of a policyholder’s claims, several experts said.

Workers comp claims account for the largest portion of Kemper’s outstanding liabilities, totaling about $600 million, Ms. Veed said.

But some states have net-worth exclusions, which eliminate guaranty fund coverage for companies above certain net worth levels, which range from $10 million to $50 million depending on the state, several sources said.”

Cavalcade of Risk & other workers’ comp news briefs

Thursday, November 5th, 2009

Debbie Dragon or Wise Bread hosts this week’s Cavalcade of Risk, which she dubs the “the How Much Assurance Does Your Insurance Offer edition.” As usual, a good source of some of the best biweekly risk-related posts in the blogosphere!
OSHA – frequent citations – OSHA recently announced its Top 10 Enforcement Citations. For a more generic, non-company specific view, see the top 10 lists for the most frequently cited standards and the standards with the highest penalties. To narrow down to information to an industry SIC code, a state, or a size of employer, see the interactive frequently cited OSHA standards page.
Montana Supreme CourtMontana’s Supreme Court ruled that workers’ compensation benefits for permanently and totally disabled workers are meant to assist them for their “work life,” and not into retirement. Writing for the 5-2 majority, Justice William Leaphart stated that, “By acting to terminate benefits as it does, (the law) rationally advances the governmental purpose of providing wage-loss benefits that bear a reasonable relationship to actual wages lost.”
Chronic illness – This week, Roberto Ceniceros has featured a pair of posts related to chronic illness on his Comp Time blog. The first highlights a research report from the Integrated Benefits Institute in which nine in ten workers reported one or more chronic health problems. The report is based on 27,000 employee surveys. In his second post, Ceniceros explores the issue of wellness programs as they relate to chronic illness and workers comp. He makes the point that an increasing number of employees may be getting better health care attention after reporting a comp injury, but that is likely true mostly for employees of large, sophisticated employers.
Related to this issue, Peter Rousmaniere writes about “the elephant in the room” in his column in Risk and Insurance, noting that co-morbidities — such as obesity, depression, diabetes, sexual trauma, smoking, and drug addiction — derail the recovery of injured workers and pose challenges for claims adjusters and case managers. He makes the point that the the workers’ compensation courts are more inclined today to rule that insurers “own” the comorbidity that impedes recovery, as evidenced by the recent weight-loss surgery rulings.
Long road to recovery – the Pocono Record features the story of John Capanna’s long, slow recovery from a severe industrial injury. John was severely burned and disfigured in a flash explosion at an oil refinery some 30 years ago. It’s a story of courage and strength. Thanks to SafetynewsAlert for pointing us to this story.
Saving lives through safety – Robert Hartwig, president of the Insurance Information Institute, makes the case that insurers don’t get enough credit for saving lives with safety research in this month’s National Underwriter. Among the points that he makes: “Today, workers’ comp insurers are a primary source of loss control expertise for millions of American businesses – with tangible results. Consider that in 1926, an employee working in a manufacturing setting had a 25 percent chance of being injured on the job. In other words, one-in-four workers suffered injuries each year. In 2008, the odds were only about 5 percent, or just one-in-20.”
Ferreting out fraud through social networking – Attorney Molly DiBianca discusses risks entailed in using Facebook to investigate employee fraud, suggesting guidelines to ensure employer protection.
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