What happens when the carrier provides publicly available social media evidence as a basis for fraud and the claimant subsequently makes the social media posts private? LOIS was recently successful in arguing that prior disclosure of social media evidence obtained by the employer is not required and that an employer/carrier can introduce “private” social media evidence into the case and using it to cross-examine the claimant.
The Law on Challenging Fraud
In New York, pursuant to Workers’ Compensation Law § 114-a (1), a claimant may be disqualified from receiving workers’ compensation benefits “[i]f for the purpose of obtaining compensation . . . or for the purpose of influencing any determination regarding any such payment, [he or she] knowingly makes a false statement or representation as to a material fact.” A fact is “material” if it is “significant or essential to the issue or matter at hand,” and it need not be demonstrated here that claimant received compensation to which he was not otherwise entitled or that he did not sustain a compensable injury (Matter of Losurdo v Asbestos Free, 1 NY3d 258, 265 .
If investigative material is obtained through covert means, it must be disclosed to the claimant before § 114(a) is raised. The carrier’s obligation to disclose the surveillance materials applies not just before the carrier’s questioning of the claimant, but also prior to when the carrier prompts the WCLJ’s questioning of the claimant (Matter of Morelli v Tops Mkts., 107 AD3d 1231 ). Generally, the carrier must disclose its surveillance materials at the earliest possible time so that the claimant is aware of the existence of those materials prior to any testimony by the claimant. A failure to notify the claimant of the existence of videotaped surveillance prior to testifying warrants preclusion of the videotaped surveillance, associated investigative reports, and any testimony relating to the reports (See e.g. Matter of Gary Cummings, 2006 NY Wrk Comp 79911267; Matter of St. Charles R.C. School & Church, 2005 NY Wrk Comp 00048213). The carrier’s obligation to disclose the surveillance materials applies not just before the carrier’s questioning of the claimant, but also prior to when the carrier prompts the Workers’ Compensation Law Judge’s questioning of the claimant (Matter of Morelli v Tops Mkts., 107 AD3d 1231 ). Generally, the carrier must disclose its surveillance materials at the earliest possible time so that the claimant is aware of the existence of those materials prior to any testimony by the claimant.
In our claim, we had provided the Law Judge with both surveillance video and social media evidence that the claimant was working. The Law Judge properly precluded the surveillance video for a procedural reason. At the next hearing, we questioned the claimant regarding a video posted on his Instagram account. The parties then argued as to whether it was admissible in light of the Law Judge’s ruling at the prior hearing precluding the prior surveillance materials. At the hearing, we indicated on the record that the video was publically accessible on the claimant’s social media posts. Nonetheless, the Law Judge precluded the evidence. Instead of differentiating between different types of materials, he lumped all of the evidence together as “surveillance documentation” and precluded the social media evidence. We subsequently appealed the Law Judge’s finding.
The Board Panel found that investigative materials not covertly obtained are not subject to the same disclosure rules as covert surveillance. Therefore, if an investigator’s report included information publically available at the time it was obtained, the reports may be admissible with respect to that information. Further, the Board Panel ruled that it does not matter whether or not the social media post were made private at a later time is irrelevant to its admissibility. The relevant inquiry with respect to the proper disclosure of potential investigative evidence is whether the information at issue was obtained covertly or whether it was publicly available at the time at the time it was obtained. The Board also noted that any subsequent actions taken by the claimant to avoid the potential ramification of once public postings are irrelevant. Allowing any other result would encourage the parties to subsequently destroy or remove evidence for their own benefit.
Applying this decision to your cases.
Keep the following list handy:
- If investigative material is obtained through covert means, it must be disclosed to the claimant before § 114(a) is raised. For example, surveillance.
- Public social media posts later made private are admissible without prior disclosure. For example, Youtube videos, Facebook posts, LinkedIn updates, Instagram posts.
- Proper claims handling therefore practical claims should include monitoring the social media of the claimant during the claim and preserve histories so that if they later destroy, it is preserved.