The year 2020 has certainly been one that none of us will ever forget. The COVID-19 pandemic has impacted every aspect of our society, and the legal and risk management communities have not been spared. Zoom mediations, depositions and even court proceedings — rare prior to March 2020 — have become the norm. The practice of law and managing claims have been upended by the pandemic. So has the ability to investigate claims, but those challenges can be overcome. This article will cover two real cases in which traditional investigative techniques were combined with modern technology to achieve favorable outcomes.
Darrell had a workers’ compensation claim against a large retail establishment. His case had been accepted by the insurance carrier, and he was receiving workers’ compensation benefits for a back injury. He had been placed on work restrictions by his doctors, which precluded him from performing his normal job duties, and was receiving weekly income benefits.
Darrell’s co-workers were not convinced there was anything wrong with him and suspected that he was exaggerating his complaints for financial gain. The insurance carrier hired an investigator to perform a social media check, which did not turn up anything useful. However, the investigator also talked to Darrell’s manager, who informed him that Darrell had a second Facebook page listed under a colorful name with no relation to his actual name.
This second Facebook page was public, with all its contents visible to anyone who opened it. It provided an unfiltered look into Darrell’s reality, which was far different from what he had been telling his doctors. Most interestingly, Darrell recently posted a video showing him with several other individuals engaged in a dance party in the middle of a busy downtown Atlanta street. At one point in the video, Darrell was seen with one leg extended up onto the side mirror of a vehicle while he danced up and down. There was clearly no evidence that Darrell had a back injury or was disabled in any way.
The video was subsequently shown to Darrell’s doctor, and he agreed there was no reason that Darrell could not work. The problem, however, was that there was no clear indication when it was taken, only when it was posted. Furthermore, there were evidentiary hurdles to tendering the video into evidence at a hearing as there was no information regarding who took the video and whether it was authentic. These challenges were partially overcome with tailored requests for admission served on Darrell, to which Darrell and his attorney failed to respond, and were deemed admitted.
Ultimately, Darrell’s attorney agreed that the video was very damaging to his client’s case and credibility. The case was settled pre-trial for a fraction of what its value was assessed at prior to discovery of the video.
The moral of this story is that the adage “Dance like no one is watching” is not always the best advice, especially if you are faking a work injury.
RAPPING RANDY AND HIS RATTING CO-WORKER
Randy worked for a beverage company in the warehouse. He was responsible for packing beverages into cases, stacking them and moving them into a trailer for distribution to convenience and grocery stores throughout Georgia. Randy injured his shoulder while performing his job duties and required surgery. Although he had a good surgical outcome, he was not cleared to return to his regular job; and his employer reached a settlement agreement of his workers’ compensation claim.
One of Randy’s co-workers got wind of the settlement. He knew that Randy was exaggerating his complaints, as Randy had bragged to him and other co-workers about how much he had been paid by the company. The co-worker decided to share what he knew: he had more information than just the overheard comments about Randy’s settlement. He knew there was video evidence to show that Randy was lying. The co-worker told his employer’s human resources department to check out Randy’s YouTube page, listed with his stage name “Rapping Randy.”
Sure enough, a video had just been posted to the page showing Randy’s latest music video. In it, Randy could be seen waving a large stack of hundred-dollar bills outside of his workplace. More importantly, the video also included footage of Randy jumping into a convertible vehicle using his hands to spring up on the car and down into the back seat. Surely, someone recovering from a torn rotator cuff, which prevented him from doing his normal job, could not put the weight of his entire body onto both arms, right?
Randy’s employer was furious after seeing the video and instructed the insurance carrier to pull the settlement off the table. Randy’s attorney was surprised to hear of the video and agreed that it was damaging to Randy’s case. However, her argument — similar to the arguments by Darrell’s attorney — was that it was unclear when the video was taken. It had been posted to YouTube shortly after the settlement agreement was reached, but she argued that it could have been taken at any time and, therefore, its impact was limited.
Ultimately, she knew that the video was not good for Randy’s case. Rather than risk losing everything at a hearing, she re-negotiated the settlement at a substantial savings to the employer.
These cases demonstrate how evidence obtained from social media accounts can be used to lead to favorable outcomes. Both derived from old-fashioned detective work, which then led to further investigation that ultimately proved fruitful. There were evidentiary challenges; but while there might have been difficulty getting them into evidence, their existence was enough. Sometimes, it is not necessary to have evidence that is admissible in court for it to have a positive impact on your case. As we continue to navigate through 2020, using traditional investigative methods in conjunction with modern technology will continue to help manage claims and mitigate risks.
Jeff K. Stinson is a partner at Swift, Currie, McGhee & Hiers LLP, with more than 15 years of experience counseling insurance companies and employers through difficult workers’ compensation claims.