Workers’ compensation fraud costs approximately $7.2 billion per year according to the Workers’ Compensation Crime Bureau. With so much at stake, workers’ compensation insurers are often motivated to curb instances of fraud by any ethical – or unethical – means necessary.
Social media surveillance has become a staple in identifying potential fraud by securing information, photos and conversations by or about individuals that file workers’ compensation claims. For example, a worker may file a claim for a back injury resulting from a slip and fall on the job, but then post something about working at a second job. Or, an employee with an eye injury claim posts details about their day on the tennis court.
And while investigators efforts have increasingly included social media surveillance to identify potential fraud, workers and their attorneys have become savvier in hiding evidence that would tend to disprove or raise questions about the validity of a claim.
In addition, employers who make use of social media to find evidence of fraud may be at risk of having the evidence used against them in court if they fail to follow some basic rules to avoid claims of invasion of privacy.
Guidelines to avoid claims of invasion of privacy include:
- Publicly Available Content: any content that is generally available is fair game. However, do not engage in deceitful tactics to obtain information. If a lawsuit is filed, information obtained pre-suit can be used by the defense for cross- examination. Should the case proceed to a jury trial, the use of social media can be perceived by potential jurors as unethical and influence a decision.
- Expand Beyond the Claimant: by searching for known friends and family members, you may uncover evidence of fraud. While the claimant may have been instructed to disable or hide social media content by an attorney, their friends and family will not. Searching for a spouse or child can reveal additional information and photographs over which the claimant has no direct control. If a claimant follows public figures, organizations and businesses, these pages are typically public and can lead to discovery of additional posts by the claimant.
- Tricks and Traps: avoid “friending” or “following” a represented claimant or plaintiff to obtain otherwise private information. If this is done pre-suit, it could be precluded during litigation if improperly obtained. It is best to refrain from following, liking, or sending requests to “friend” anyone you are searching, including the claimant and his or her friends or family.
- Preserve available content: when a claim is filed, you are in a race to capture content before it is removed or hidden. Therefore, when content is found, preserve it immediately by copying the URL link directly from the browser into a word document or directly into claims notes. Also, take screen captures and store for future use.
Many grey areas still remain with regard to the discoverability and admissibility of social media content, arising from privacy and relevance concerns. Therefore, it is best to err on the side of caution when it comes to ethically gathering social media evidence.
It is also important to remember that majority of fraudulent workers’ compensation claims do not arise from scammers and opportunists, but rather from employees with legitimate claims. These are often people, who having followed required reporting requirements, medical instructions and treatment plans, still find significant barriers to their recovery. They may feel forgotten or unhappy and just go through the motions. It’s important to manage the process carefully, and if obtaining evidence, avoid any appearance of impropriety. It can only come back to bite you later.