Social Media, Surveillance in High Demand Among Payers During Pandemic

Sarasota, FL (WorkersCompensation.com) – An injured worker who alleged she was unable to work because her back and arm injuries had rendered her totally disabled was seen on video going to the gym, doing squats, push-ups and other high intensity exercises. Another injured worker with a severe shoulder injury was filmed playing cornhole. A third injured worker said his finger injury was keeping him out of work; yet his advertisement on social media led investigators to film him detailing cars.

While research shows the vast majority of injured workers are truthful and want to return to their jobs, there are some who clearly do not. Failing to identify these outliers can be a pricey proposition for employers/payers. But using social media and surveillance can ensure these claims do not move forward.

“With some areas still in lockdown, more than ever in defending workers’ compensation and general liability claims we are all looking for more information. We are all looking for more leverage in trying to close our cases,” said Richard W. Lenkov, Capital Member of Illinois-based Bryce, Downey and Lenkov. “When you’re not able to employ your standard measures of investigation when people are at the workplace, surveillance and social media become even more important.”

The increased interest in surveillance among workers’ compensation stakeholders was the impetus for a recent webinar on ways to investigate and win workers’ compensation cases. There are some specific dos and don’ts that can help payers catch these errant injured workers.

Surveillance

Catching an "injured worker" red handed can be tricky. Payers don’t want a surveillance team to sit outside the employee’s house indefinitely, wasting precious dollars. But there are ways to anticipate appropriate timing. A scheduled IME appointment, for example, can lead to good footage. The key to getting usable film is to first know what work restriction(s) the injured worker has.

“The whole goal of surveillance is to impeach their testimony,” Lenkov explained. “Looking at the actual film, that alone legally means nothing without the impeachment. The key is using that film, contrasting it with some evidence – like worker restrictions. Their testimony that ‘I can’t work because I’m hurt,’ contrast that with what is on the video.”

What makes the video most effective at trial is the element of surprise. It works best in states such as Illinois, where attorneys in a workers’ compensation case do no have to disclose the video surveillance to the other party.

Lenkov said at trial, the defense attorney can ask the injured worker – who is under oath – to confirm that he cannot work due to injury, that he told his physician on specific dates why his injury is preventing him from work. “Then play the video that shows him walking, carrying, things, in contrast with what they said under oath,” he said. “Then they can’t get out of it. Their testimony is locked in. if you show them the video before, guess what? The claimant will change their story … you’ve blown it if you tell them about the video before.”

Social Media

Employees who fraudulently claim a workplace injury often fall prey to the dangers of social media. That is, they post pictures that clearly show them doing activities that their claimed injury would not allow. In the case of Nicole Jones v HCR Manorcare, an injured worker claimed she had difficulty standing, needed a cane and could not live a regular life. But her posts on social media painted a different picture.

“Hi everyone,” it said. “Does your house need cleaning around the holidays? I’d be happy to come out and give you a quote.” Several subsequent posts advertised spring cleaning and moving assistance. One key that helped the defense win their case was her consistent use of the word ‘I’ in her social media posts.

“I showed her the social media posts after she testified. She said, ‘I was advertising for my cousin,’” Lenkov said. “Guess how many times her ‘cousin’ was mentioned? Zero. We also had surveillance of her clearly cleaning.”

Companies that do surveillance often have social media departments which are able to access databases for background records. They look through "friends" lists and find family members, which helps to verify that the person in the post was indeed the injured worker.

“Social media is a big tool we use,” said Corey Parker, Account Manager at Advantage Surveillance, LLC. “It’s not the whole piece of the puzzle but it gives you some intel before heading into the surveillance realm. We use social media day in and day out.”

“You can’t ‘friend’ a claimant to try to get information that would otherwise not be in the public domain,” Lenkov pointed out. But public domain, and public places that are not being used for a private event are fair game and should be used to the extent possible.

In the case of an injured correctional officer, Parker’s team used social media to find she was advertising teaching yoga classes. They found out where and when she would be teaching. “We attended the class using covert cameras to get footage,” Parker said. “If your company isn’t going inside of places, they are not doing their job.”

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