June 12, 2013

Facebook and Iowa Work Comp Law

There is an old saying that you should never say or do anything that you would not want to show up on the front page of the New York Times. I have always thought that was good advice, and with a few unfortunate exceptions I have generally been able to follow that rule.

However, in the modern world of social media such as Facebook, Twitter, Google Plus, etc., etc. many people actually create a record in electronic words and photos that they might have not wanted to share with the world if they had given it a little more thought. In the last several years the issue of whether claimants in all kinds of injury cases can be required to share their social media accounts in the discovery phase of their cases have become a big issue all across the country. The states have varied quite a bit in their decisions of how much of an injured worker's social media history can be discovered and accessed by the Defendants. However, it is a strong possibility that such access will be required in Iowa workers' compensation cases. It has already become fairly common in Iowa for the defense lawyers to request access to the accounts of injured workers.

An injured worker social media account could hurt his workers' compensation claim in any number of ways. In cases across the country either civil courts or workers' compensation tribunals have barred or lowered damages for claimants based on evidence from social media accounts.

In McMillen v. Hummingbird Speedway, Inc., 2010 WL 4403285 (Pennsylvania 2010) the Plaintiff's Facebook pages contained accounts about fishing trips and attending NASCAR races that were inconsistent with his claimed disability.

In Romano v. Steelcase, Inc., 907 NYS2d 650 (210) the Plaintiff claimed that she had serious injuries that caused her to be largely confined to her home in bed. Her Facebook pages showed that she had an active lifestyle involving extensive traveling that was contrary to her claimed disability.

I think one of the keys to a successful workers' compensation case is for the claimant to be completely honest. (See here for my blog post of May 8, 2012 about the importance of always telling the truth in Iowa workers' compensation cases.) The plaintiffs in the McMillen and Romano cases appear to have been trying to deceive the Courts, and that sort of behavior seldom works out.

However, a claimant does not have to be dishonest in order to have their Facebook postings used against them. Some people post content that could be interpreted to show that the worker has problems with alcohol, illegal drugs, social relationships, job satisfaction, anger control, etc. A defense lawyer can use this information to argue that these other issues are the worker's real problem, and the injury is only a minor factor.

An injured worker who generally post about everything going on in their life might choose not to talk about their work injury. Defense counsel could argue that the worker's failure to mention anything about his injury on their Facebook page indicates that the injury could not have been very significant. The ability of a defense counsel to use an injured worker's social media account against them in the work comp litigation is only limited by the specific details of the worker's Facebook account and the imagination of the defense lawyer.

Many lawyers advocate that an injured worker should immediately shut down and remove any and all online accounts. I think this is a good idea, with the caveat that a copy of any accounts should be preserved to rebut the defense argument that content that was potentially damaging to the claimant's case was destroyed.

Hopefully, you will never get injured at work, and you won't have to worry about defense lawyers wanting to look at your Facebook page. However, if you follow the rule of never putting anything on your Facebook account that you wouldn't want in the New York Times, you won't have to worry about it.