Facebook photos result in loss of workers’ compensation benefits

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Remember back in January when I told you that where workers’ compensation cases are concerned, insurance company attorneys would look for information about a Plaintiff wherever they could…. including social media?

Well, apparently Zakery Clement didn’t read that particular post, which wouldn’t be that much of a problem, except that he could have benefited from my second bullet point. It pertains to internet networking tools as they relate to workers’ compensation cases:

Be mindful of other things you post as they relate to your case. For instance, say you’re suing an employer for worker’s comp benefits because of a fall. In that circumstance, maybe you shouldn’t be posting pictures of yourself on Facebook that show you posing at the top of a ladder, flashing a cheesy grin and giving two thumbs up.”

In May of 2009 Clement (who is from Pine Bluff, Arkansas) was injured when a refrigerator fell on him during the course of a workday at Johnson’s Warehouse Showroom. As a result, he was compensated by Johnson’s and National Union Fire Insurance for medical expenses; he also got temporary total disability benefits for nearly two years.

Clement had three surgeries as a result of the injury and was seeking an extension of benefits when an administrative law judge (ALJ) and the state workers’ compensation commission denied his request. Clement was claiming excruciating pain and the need for further treatment, but Defendant’s attorneys introduced pictures of him ‘drinking and partying’.

Zakery Clement appealed the decision, arguing that his Facebook and MySpace photos had no bearing on his case and needed medical treatment. Steven McNeely, Clement’s attorney, said, “Allowing those Facebook photos for the proceeding is an injustice because it takes away from the dignity of the working class. That had nothing to do with whether or not he had an hernia. It’s irrelevant, immaterial and prejudicial. It should be about whether Zack needed additional treatment.”

Clement lost the appeal. Judge David M. Glover, Arkansas State Court of Appeals, stated in a written opinion, “We find no abuse of discretion in the allowance of photographs. Clement contended that he was in excruciating pain, but these pictures show him drinking and partying.”

Glover further wrote, “Certainly these pictures could have a bearing on a Clement’s credibility, albeit a negative effect that Clement might not wish to be demonstrated to the ALJ or the Commission. We hold that there was not an abuse of discretion in allowing the photographs.”

To summarize, it’s okay to be twenty-seven years old and foolish. However, you might not want to post evidence of your foolishness on social media networks if you are in the middle of a workers’ compensation dispute. That hearkens back to my fourth point in that post last month:

If you have an expectation of privacy, then you should act accordingly: Lock down all your social media as tightly as possible. Blogs can be password-protected, Twitter can be locked, Facebook allows you to show as much or as little of your life as you prefer based on individual settings. Still, though, there are no guarantees that your online life cannot be accessed.”

Need help navigating the workers’ compensation system?  You should give us a call at 404-354-5432!



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