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Social media evidence increasingly used in workers compensation cases

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Social media is a relatively new phenomenon, which is increasingly becoming a central part of many people’s lives. Given that society is still in the midst of what might be interpreted as the experimental stage of social media adoption, its ramifications for seemingly unrelated aspects of life are not yet fully understood. One of these aspects of life is law, particularly the relationship between workers’ compensation and social media in Illinois.

Perhaps an undesirable consequence of this activity is significantly increased transparency for unintended observers into individual lives.

 

Increased transparency

This increased transparency can be damaging to injured workers pursuing workers’ compensation claims. The success of these claims hinges on establishing that an injury arose during the course of employment. Compensating these injuries represents a significant cost to both employers and their insurers. Consequently, they can be expected to find any reasonable opportunity to not be liable for a claim.

One of such reasonable opportunities to not be liable for a claim would be any evidence that the claimant has misrepresented the nature of the alleged workplace-related injury. If the claimant happens to be someone who documents experiences or otherwise communicates with others via social media, the claimant’s social media accounts become an obvious source of potential evidence against the claim.

Two examples of how an employer’s or an insurer’s attorneys could use a claimant’s social media accounts to weaken a claim for workers’ compensation benefits demonstrate the power of social media as a source of evidence. One example is a worker who has filed a claim on the basis of a leg injury and then posts a video of him participating in an athletic event after the alleged date of the incident. Another example is a worker who has filed a claim on the basis of a shoulder injury in the workplace and then communicates to a friend about how the injury in question took place outside of the workplace.

Authenticity concerns

Some injured workers may worry that the electronic nature of social media might make it subject to abuse. This is an important consideration for the courts, which have determined that, under Federal Rule of Evidence 901, the following are sufficient for establishing the authenticity of social media:


  • Distinctive characteristics in a photograph that identify the individual

  • A username consistent with a common nickname of an individual

  • A witness who has read messages or posts that knows the subject individual


With employers and insurers working to avoid paying out claims, claimants may wish to seek the counsel of a workers’ compensation attorney.

 

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