The idea of workers’ compensation fraud is embedded in the popular imagination and an evergreen mainstay of local news coverage — and of course social media.
Social media is a new wrinkle on the old chestnut of workers’ compensation fraud. Usually stories go something along the lines of:
“A Florida man who was receiving workers’ compensation benefits for a back injury was arrested after he posted about his “epic workout at Beast Mode Crossfit” where he “maxed out” on his “deadlift at 405” on Facebook.” (FTR Beast Mode Crossfit is a real gym, but it’s in Texas)
There is a lot wrong with this stereotype or trope besides my poor attempts at humor.
First of all employer and medical provider fraud is as prevalent, more costly, but less reported than employee fraud.
Second, injured workers have to go through all sorts of gatekeepers to get benefits such as insurance adjusters, defense lawyers and medical examiners in workers’ compensation case that either actively or passively assume their cases are somehow illegitimate or exaggerated.
But the inconvenient truth for plaintiff’s lawyers is that sometimes injured workers do post things on their social media accounts that hurt their cases.
That’s why some lawyers advise their clients not to have or not use social media accounts during litigation.
I don’t think that is practical or helpful for a lot of reasons.
Job and business opportunities – People find out about jobs through social networks. Those social networks have now moved online. It’s not unusual to see a “My company is hiring” post on Facebook. (There is a whole social network, Linked-In, that is geared towards these posts) If you are off of work and or looking to return to work after recovering from an injury that is the subject for a court case, then Facebook and other social networking sites may be helpful in finding work.
Many people also run home businesses or side businesses. Social media is helpful in promoting those businesses. Traditional want-ads have largely moved to social media as well. Sometimes injury victims will need to sell possessions to get by while a court case is pending.
Social connections – People with serious injuries are often unable to work for a period of time, so they lose the social connections of work. They tend to get lonely and unhappy. These unhappiness compounds the physical pain of an injury and anxiety over a court case. Social media is a way to maintain social connections and connect to people you don’t know in real life (IRL), but may share common interests. Those social media connections can be particularly important for people who may have relocated from another part of the country or immigrated from another country and may not know many people locally.
News and Entertainment – I read something on Twitter where some hipster-type tweeted they needed a show for background noise while they were on their phone. The combination of smart phones (a dated term) and social media means that people find entertainment by accessing social networks on their phone. Cable televisions and even streaming services cost money. But so long as you have phone service, you have a source of entertainment. Social media is also a free news source whereas news sources that require a subscription may be beyond the financial means of an accident or injury victim.
Social media may have been extraneous 10 years ago. In 2009, it wouldn’t be unreasonable to tell someone “Don’t go on Facebook while your case is open.” Many clients might not have even had an account.
But as a lawyer in 2019, if you tell a client not to use social media, you are telling them something like, “I don’t want you to interact with your friends, talk about sports, television shows, politics. I don’t want you sharing jokes, trying to run a home business or use a free service that could help you find work. I’m telling you this because there is a small chance you could ruin your case (and my fee) if you post something dumb.”
I still think lawyers should advise their clients about social media use. I don’t think there is anything unwise or unethical about advising clients to adjust privacy settings. I advise my clients to be careful on socail media I also think it’s smart to advise clients not use social media during a trial or deposition.
But I believe it’s impractical to tell clients not to use social media while they are involved in a claim or litigation.