Social media has quickly become one of the most transformative tech tools in modern society. More than 80 per cent of the Australian population are active social users as of 2021, a rise of 30 per cent in just six years.
Use of social media is considered an ongoing real-world experiment by many technology experts, with both positive and negative consequences. On the one hand, it allows people to instantly connect and stay in touch all over the world. On the other it exposes users, including vulnerable people such as children, to potentially harmful content.
The implications of social media use are already well-known in modern workplaces. Most employers now have a code of conduct governing how employees can use social media in work hours – but some also stress the need for the company’s reputation to be protected by employees when posting to social media in their personal time.
The focus of this article is on the role social media can play in a workers’ compensation claim by an injured employee.
How can your social media use affect your workers’ compensation claim?
As use of social media has grown, so has its use in legal proceedings, including workers’ compensation claims. People share so much of their lives on social media, including photos and descriptions of family gatherings, overseas trips, holidays, parties, weddings and other social events. They also exchange personal news and views with family and friends such that an otherwise disinterested observer could easily find out many details of their lives.
Insurance company investigators, whose job is to guard against fraud, have become practised at examining the social media accounts of those seeking compensation to find information that might help them deny or mitigate the claim. This process will include looking through the accounts of family and friends in what has been described as a form of electronic surveillance to try and verify the extent and severity of the claimant’s injury.
What’s important to note is that social media posts can be used as evidence in denying the workers’ compensation claim, or proving the claimant’s contributory negligence in causing the injury. Pictures or descriptions of a claimant water-skiing, hiking or doing anything physically active may hamper their claim to being injured and unable to work, for example.
For this reason, a person making a workers’ compensation claim will usually be advised by an expert legal professional to approach social media posting with extreme caution during the period of making and resolving the claim. It doesn’t mean they must go ‘cold turkey’ on social media, but be extra careful and vigilant about what they post and how they interact with others.
The importance of privacy settings
Many people who use social media platforms are unaware of how ‘public’ their information is. All platforms now have extensive privacy settings to ensure a user can restrict who can see and share the information they post. It’s essential for a person making a workers’ compensation claim to activate privacy settings on their social media accounts to restrict who can access their posts. Additionally, users should not share passwords or accept friend requests from random people.
Examples of where social media use has been crucial in a claim
The leading case example for the use of social media in a workers’ compensation claim is Digby v The Compass Institute Inc and Anor from 2015. Ms Digby claimed an injury at work had left her with a tremor in her right arm and hand and she was unable to return to work. The impact of the injury on her lifestyle and overall enjoyment also caused her a psychiatric injury, she claimed.
In a trial of the claim, material from Ms Digby’s Facebook account was admitted as evidence which cast doubt on her injury claim. Her social posts suggested there may be other explanations for her psychological state and showed social activity that contradicted her claim that the injury had caused her depression and isolation. The impact of these posts was that the final amount of compensation she received was significantly reduced.
Caution required using social media when making a workers’ compensation claim
An injured worker who decides to pursue a workers’ compensation claim needs to exercise extra caution when using social media until the claim is resolved. As mentioned, this means refraining from posting pictures and/or videos that shows them undertaking strenuous physical activity – playing sport, bushwalking, gardening or even material which suggests a busy and active social life – material that could potentially be used by an insurer to challenge the claim.
Similarly, a claimant should exercise care not to post anything that suggests they are not undertaking necessary recovery and rehabilitation for the injury. In the end, workers’ compensation is designed to help the injured worker back to work, not keep them away permanently. A person making a claim should also refrain from commenting on social media – or replying to anyone who comments on their posts – about the claim as this material could potentially be considered an admission of liability or partial liability.
It’s wise for the claimant’s family and friends to also exercise restraint by not posting on social media about the claim, or divulging information that undermines the worker’s claim of injury. A photo posted by a friend may derail your claim.
All discussion of the claim, ideally, should remain confidential between the person making the claim and their legal representative.
The need for expert legal advice
It’s common practice now for insurance companies to trawl through a person’s social media accounts, whether they are making a workers’ compensation, personal injury, motor vehicle or public liability claim. If an injured person makes a common law claim for damages, social media posts may also be part of the compulsory discovery process. For these reasons, it’s crucial to be more cautious about how social media is used after the injury in case posts become part of the evidence used to deny your claim. At GC Law our persona injury lawyers are compensation specialists who can advise you on how to manage social media use during a workers’ compensation claim as well as try to limit an insurer’s ability to use the material. Contact Our Compensation Lawyers today for a discussion of your claim.
