Georgia Workers' Compensation Lawyer Blog

Remember back in January when I told you that where workers' compensation cases are concerned, insurance company attorneys would look for information about a Plaintiff wherever they could....including social media?

Well, apparently Zakery Clement didn't read that particular post, which wouldn't be that much of a problem, except that he could have benefited from my second bullet point. It pertains to internet networking tools as they relate to workers' compensation cases:

Be mindful of other things you post as they relate to your case. For instance, say you're suing an employer for worker's comp benefits because of a fall. In that circumstance, maybe you shouldn't be posting pictures of yourself on Facebook that show you posing at the top of a ladder, flashing a cheesy grin and giving two thumbs up."

In May of 2009 Clement (who is from Pine Bluff, Arkansas) was injured when a refrigerator fell on him during the course of a workday at Johnson's Warehouse Showroom. As a result, he was compensated by Johnson's and National Union Fire Insurance for medical expenses; he also got temporary total disability benefits for nearly two years.

Clement had three surgeries as a result of the injury and was seeking an extension of benefits when an administrative law judge (ALJ) and the state workers' compensation commission denied his request. Clement was claiming excruciating pain and the need for further treatment, but Defendant's attorneys introduced pictures of him 'drinking and partying'.

Zakery Clement appealed the decision, arguing that his Facebook and MySpace photos had no bearing on his case and needed medical treatment. Steven McNeely, Clement's attorney, said, "Allowing those Facebook photos for the proceeding is an injustice because it takes away from the dignity of the working class. That had nothing to do with whether or not he had an hernia. It's irrelevant, immaterial and prejudicial. It should be about whether Zack needed additional treatment."

Clement lost the appeal. Judge David M. Glover, Arkansas State Court of Appeals, stated in a written opinion, "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."

Glover further wrote, "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. We hold that there was not an abuse of discretion in allowing the photographs."

To summarize, it's okay to be twenty-seven years old and foolish. However, you might not want to post evidence of your foolishness on social media networks if you are in the middle of a workers' compensation dispute. That hearkens back to my fourth point in that post last month:

If you have an expectation of privacy, then you should act accordingly: Lock down all your social media as tightly as possible. Blogs can be password-protected, Twitter can be locked, Facebook allows you to show as much or as little of your life as you prefer based on individual settings. Still, though, there are no guarantees that your online life cannot be accessed."

Need help navigating the workers' compensation system?  You should give us a call at 404-354-5432!

Where worker's compensation cases are concerned, insurance company attorneys will look for information about a Plaintiff wherever they can. Well, it appears that --for the most part-- enthusiastic users of social media sites and applications can rest easy for now; some recent legal decisions indicate that judges aren't in any hurry to give blanket access to Plaintiff status updates, personal photos, and related content (though at least one judge in Georgia ruled otherwise in 2010).

A Supreme Court judge in New York reminded defense attorneys that just because they ask for something, doesn't mean they have blanket rights to it....they need to establish why they need it and that it will supply information that can't be ascertained by reasonable, usual means such as depositions, pretrial examinations, and interrogatories.

Suffolk County Justice Arthur G. Pitts responded with the following on a Notice to Admit that sought Plaintiffs admission of their social media use:
"It is well settled that the purpose of a Notice to Admit is to eliminate from the litigation, factual matters which will not be in dispute at trial, not to obtain information in lieu of other disclosure devices...[It] may not be utilized to request admission of material issues or ultimate or conclusory facts which can only be resolved after a full trial. It may not be employed as a substitute for other disclosure devices, such as examinations before trial, depositions upon written questions or interrogatories. Herein, the information sought by defendant [via the] Notice to Admit, would be available through other disclosure devices, including simply asking the plaintiff at his examination before trial whether he utilizes social media sites. A Notice to Admit clearly is the improper device to obtain such information."

Even with these recent challenges to accessing information about a Plaintiff via social media, you still need to be mindful of how you are using the internet's popular networking tools.

1) If you are involved in any sort of litigation, it's best to just simply leave any mention of it off of Facebook, Twitter, or your blog.

2) Be mindful of other things you post as they relate to your case. For instance, say you're suing an employer for worker's comp benefits because of a fall. In that circumstance, maybe you shouldn't be posting pictures of yourself on Facebook that show you posing at the top of a ladder, flashing a cheesy grin and giving two thumbs up.

3) Think about the way friends and family might chance to use social media. If you're in litigation for workers' compensation, your wife's enthusiastic revelation via Twitter that "My husband and I rocked our FACES OFF at the concert last night!!1!" probably isn't the greatest of ideas.

4) If you have an expectation of privacy, then you should act accordingly: Lock down all your social media as tightly as possible. Blogs can be password-protected, Twitter can be locked, Facebook allows you to show as much or as little of your life as you prefer based on individual settings. Still, though, there are no guarantees that your online life cannot be accessed.

5) Like anything else in life, common sense should prevail here. If anything in you says, "Should I hit publish on this?" you probably should not.

Remember, picking up a phone could save you a lot of headache in the long run: If you're unclear on what matters and what does not in relation to your worker's compensation case, call your attorney for guidance.  

As much fun as nude dancing while getting a temporary total disability check from your Georgia workers' compensation claim may sound, you may be prosecuted for insurance fraud if you're receiving disability payments and working at the same time. Even if you consider exotic dancing or stripping to be far from "working," the insurance commissioner is unlikely to agree with you.

And, since workers' compensation insurance defense attorneys and insurance adjusters are notorious patrons of gentlemen's clubs, you are likely to get caught. Nobody wants to see the attorney from the deposition last week shoving dollar bills where the sun doesn't shine tonight. Right? Of course not.

Naked dancing for money while on workers' comp = bad news. Just ask this lady.

Refraining from nude dancing after a workers' compensation accident?  Feel free to call my Atlanta workers' compensation lawyers' office in Buckhead. 

If you have a Georgia workers' compensation claim and use social media, such as MySpace, FaceBook, Foursquare, and the like, please be aware that your status updates, pictures, and check-in locations are likely monitored by investigators, adjusters, and defense attorneys.  Hopefully, by now, most folks realize their internet exclamations aren't private.

However, even if your updates and posts are set to "friends only," a workers' compensation administrative law judge may issue an Order forcing you to give up your personal computer for inspection by the insurance company.  It happened earlier this week in Macon, Georgia.

My Atlanta workers' compensation lawyers' office does not knowingly represent claimants who are malingering or being less than honest about the extent of their injuries, but we still let our clients know that creating a perception that their abilities are greater than they truly are after an accident will come back to "bite" them.  So don't do it.

Workers' compensation clients sometimes call to tell me how strongly they identify with Rockwell, who told us in 1984 that somebody was watching him.  Why is this?

Sometimes when an adjuster believes a workers' comp claimant is being dishonest about how injured he is, the adjuster will hire an investigator to follow the claimant for a day or two with a video camera.  If you're on workers' compensation benefits and see someone who appears out of place or to be following you, I recommend smiling and waiving.  Or, you can do as one claimant did when I was still defending insurance companies, and call the police, which will certainly embarrass the investigator and probably ensure that he won't follow you again.

Surveillance is admissible if the proper foundation is laid, but if your attorney does not frequently handle Georgia workers' compensation claims, he or she may not know to request  surveillance before trial or how to address it when it is sent.  I recommend working with an experienced Atlanta workers' compensation attorney who has faced issues like this from both sides of a workers' comp claim.  Otherwise, your claim may go the way of Rockwell's singing career.