Workers’ Compensation and Web-Based Evidence

Staying Ahead of the Social Media Curve

It is undeniable that our world is becoming increasingly digital, and increasingly social-media oriented. In fact, it is currently estimated that Facebook has 1.5 billion daily users, and 2.3 monthly users. At any given minute throughout the day, there are an estimated 347,222 people scrolling through Instagram. Twitter has approximately 326 million monthly active users – a number which is steadily growing[1]. In fact, all of these numbers are steadily growing. According to a recent New York Times articles, studies estimate that people between the ages of 35 and 49 spend about three hours per day on social networking sites, while those between 18 and 34 spend more than 3.5 hours per day using social media platforms[2]. It goes without saying then, that in that time, amongst all of those users, a significant amount of content is created each and every day.

While these facts are interesting simply from a statistical perspective, they are also telling. What do they tell us, exactly? They tell us that our world is more connected than ever. They tell us that our means of communication with one another has shifted seismically in the course of a generation. They tell us that now we can receive our news, our information about family and friends, and updates on important business matters in an instant. We are connected in an online web that stretches across the globe, and is ever-growing. And importantly, for those in the practice of law, these statistics indicate clearly that by revolutionizing our daily life, the way we communicate with each other, the way we purchase our goods, and the way we conduct business, the rise of digital media is also, by default, revolutionizing the practice of law.

Changing the Legal Landscape

Increasingly, courts are looking to digital evidence, and social media in particular, as a very valuable source of evidence. While this is true across the board in legal practice, social media can be particularly influential to cases in certain practice areas, workers’ compensation certainly being one. Why is this so? It’s simple. It’s human nature. It’s the urge to share our lives with others – an urge that is usually indulged online without a great deal of thought to the potential consequences, which are often significant in workers’ compensation matters.

Increasingly, most of us have become very comfortable discussing our personal lives in the public forum that social media provides. Often, people don’t even think twice about what they post – whether it be work-related, or a personal matter, sharing our lives with one another through the outlet of social media has become quite commonplace. It has become so commonplace in fact, that many fail to even consider the impact of discussing private or work related issues with others on their social media accounts.

As those who practice workers’ compensation law well know, a claim’s ultimate success or failure hinges upon whether or not the injury at issue occurred while the employee was working. Certainly, if an employee was legitimately injured in a work-related incident, paying the claim is required under the law, and it is for that very purpose that workers’ compensation insurance exists. In some scenarios, however, whether or not an injury actually occurred at work is an important question of fact. It is here that the overwhelming urge to share on social media can play a central role in making or breaking a case.

Real-World Impact

How exactly might social media evidence impact your cases? Consider the following real-life examples:

· A claimant in California was working as a package handler and alleged that during the course of that work, he sustained an injury. While adjusting the claim, the insurer became suspicious, and referred the case to an investigations company, who discovered, through a search of the claimant’s social media sites, that he was regularly going bowling after the injury was alleged to have occurred, and during which time he was receiving disability benefits, as he was posting his scores online. During a deposition in that case, the plaintiff perjured himself when he testified that he enjoyed bowling but that his injury had prevented him from continuing to bowl. He further testified that he had not bowled since the injury occurred. The plaintiff also made further misrepresentations to medical providers by stating that his pain had increased with lifting or other such activities, even though this was clearly not the case as he was bowling regularly. In that case, thanks to the social media evidence presented, the claimant was ultimately ordered to repay $12,764 in benefits, and to serve 400 hours of community service[3].

· The Insurance Journal recently included a story about a woman who claimed that a work related injury occurred which left her unable to wear shoes or even walk. However, her social media accounts, both Facebook and YouTube, indicated that she was wearing high heels and participating in a beauty pageant after the date of the alleged injury. She ultimately lost her claim for workers’ compensation benefits, and was charged with fraud.

· Another man lost his workers' compensation after two different social media sites included photos which showed him partying with friends and drinking. The photos were ultimately admitted as evidence against his claims that he was in terrible pain, and therefore needed further payments and medical care.

These examples are only a few of many cases in which workers’ compensation claims were ultimately denied, or benefits returned because of the important role that social media evidence played in discrediting the claim. Reviewing posts, photographs, check-ins, and other information and verifying it against the date that the injury was said to have occurred can be extremely helpful in uncovering fraudulent claims.

Clearly, social media can be extremely valuable and useful in workers’ compensation claims. Social media evidence could easily be used in workers’ compensation matters to prove all of the following things:

● That the injury which was alleged to have occurred at work actually occurred outside of the course of employment, and as a result, is not the proper subject of a workers’ compensation claim;
● That the injury is not as severe as the employee claims;
● That the worker has turned down other available employment that he or she could perform despite the injury.

These are just a few examples of many where social media could be a virtual goldmine for workers’ compensation attorneys and their clients. The question is, how best to capture that evidence?

Why WebPreserver?

Certainly, social media evidence is subject to the same standards for admissibility and authentication as other types of evidence. The issue often becomes deciding how best to gather that evidence to ensure that it is easily authenticated and readily admissible. Some workers compensation defense firms and insurance providers make the mistake of attempting to gather social media themselves using manual, non-forensic screenshots. Others outsource their evidence collection requests to third party collection services that require wait times aren’t on-site. Not only are these approaches risky, they’re inefficient and costly as well. If you’re considering screenshots or outsourcing as your methods of evidence collection, consider the following:

· Screenshots aren’t self-authenticating. Presenting a Screenshot as evidence in your case is more than simply printing out a picture of your screen. It also requires a third-party affidavit for purposes of authentication. Why would you choose to go to the trouble and expenses of gathering and producing affidavits, when you could use a service like WebPreserver that produces self-authenticating evidence pursuant to FRE 902?

· Screenshots aren’t well-suited to the nature of social media: As almost anyone who has used social media for an extended period of time knows, much of the content is scrolling and expandable. Most of us have had the experience of having to click on an update first, and afterward, clicking on the comments and pictures underneath to “expand” the entire portion of content. Doing this endlessly while taking screenshot after screenshot is inefficient and risky. Not only might you miss valuable evidence if you fail to expand all of the content … you’ll also certainly waste valuable time that you could be spending on other portions of your client’s case.

· Screenshots are easily called into question. As opinions issued in courtrooms across the country have made clear, screenshots are often met with considerable scrutiny. Increasingly, courts are relying upon social media as an important evidentiary source in denying fraudulent workers’ compensation claims. In order to rely upon that evidence, courts expect it to be easily authenticated, well-organized, and readily available. When gathered effectively, that evidence can make the critical difference in getting fraudulent workers’ compensation claims dismissed. When gathered ineffectively, or in a manner that is not easily authenticated, however, you might lose the chance to rely upon that valuable evidence altogether. With WebPreserver, you can ensure that you collect evidence which meets strict judicial scrutiny, and that you so do in an efficient, cutting-edge, cost-effective manner.

· Outsourcing evidence collection costs valuable time. Perhaps you don’t use screenshots to collect your social media evidence, but choose to outsource it to a thirdparty collection service instead. When considering this option it is important to keep in mind that the world of social media is often very much a “here today gone tomorrow” world, which only makes sense when human nature is considered. Often, people make posts in an emotional moment, only to delete them days, or even hours, later. Those posts might be very valuable, but if you are outsourcing collection to a third party, there’s no guarantee that you’ll be able to capture them before they disappear forever. With WebPreserver, it’s simple. Browse. Click. Evidence. Using your chrome-based Plug-in, you can capture the evidence you need, at the moment you see it. WebPreserver is the clear choice for all of your social media evidence collection needs. WebPreserver presents investigators, attorneys, and insurers with the most cutting-edge evidence capture technology available, at a cost-effective price. The amount spent for cuttingedge service like WebPreserver would be only a fraction of what a full investigation of a more traditional nature might cost in a workers’ compensation claim. The potential exists to save thousands, or tens of thousands of dollars – or more, as cases where social media evidence is critical only continue to increase.

With WebPreserver, the advantages are clear. When you use WebPreserver, you are using a product that generates forensic reports with a forensic SHA256 hash, and HTML source code. All of our captures include key identifying Metadata such as the timestamp, the URL, IP address, date, and time, using a certified Stratum-1 atomic clock in compliance with the eSign Act. You can capture what you need at the instant you need it, and know that when you do, you are capturing evidence that contains the needed hallmarks of authenticity which courts are increasingly seeking. It doesn’t matter how many affidavits you produce, or how much human testimony you have as to the authenticity of your evidence if the technology isn’t there to back it up.

Webpreserver can collect the data you need at any time, at any location, in just seconds. If you can gain access to it, using our service you can collect it with just one click. Websites, blogs, social media, chat forums, video and audio files – the WebPreserver plugin can collect them all in their native formats, and also in a variety of forensically sound export formats. Give us a call today to get started successfully denying the fraudulent workers’ compensation claims that come your way.

[1] https://www.zariance.com/reads/social-media-statistics/

[2] https://www.klnivenlaw.com/Articles/How-social-media-evidence-can-affect-PA-workerscompensation-claims.shtml

[3] http://www.insurancefraud.org/IFNS-detail.htm?key=18977#.Vwka1mQrL-Y

Essential Evidence and Adequate Authentication The Power of Precedent in a Digital Age

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