Author: Nancy Germond

The 80/20 rule often applies in workers' compensation claims: 20% of the claims will consume 80% of the adjuster's time. This can mean that some workers' compensation claims linger long after they should have resolved. When this is the case, or when your insured suspects that the injury may not be work-related, a social media investigation may help close the claim.

What is a Social Media Claims Investigation?

A social media investigation takes a deep dive into an injured employee's or claimant's social media activity to determine these and other issues.

• If the injury as described seems legitimate
• If the injured employee is working or recreating outside his or her medical restrictions
• If the injured employee has outside income that may reduce the claim wage estimation

Social media investigations offer a look into the injured employee's background, socioeconomic status and current activities, all important factors in claims settlement.

Social media claims investigations can start immediately upon reporting a loss when the employer feels the injury details may be suspect, or later in the claim, when the injured worker is not healing according to standard disability guidelines. For example, for a typical low-back, non-surgical injury, disability guidelines may predict a return-to-work within a few weeks. When injuries linger on, social media investigations can help determine the extra-curricular activities of injured workers to determine if they have

• Outside employment
• Recreational or sporting activities (notable during hunting season) that conflict with the injured worker's medical restrictions
• Travel or vacation plans that may impact return to work
• A hobby, which can trigger improved surveillance leads, such as regular gold games or participation in a softball league, for example

A social media deep dive uncovers the worker's presence on social media, from Instagram, Twitter, Tinder, Facebook, even TikTok. Defense counsel can use information obtained through social media investigations to challenge the injured worker under oath.

Many of the vendors that provide social media surveillance also provide physical surveillance, which provides adjusters with streamlined vendor management.

Social Media Investigation Not Limited to Workers' Compensation Claims

From trip and falls to other premises liability claims, adjusters can use social media investigations on any claim that is questionable or when the claimant is not healing according to normal disability guidelines.

In third-party injury claims where the injury party has legal counsel, plaintiff counsel rarely provides current medical information. Adjusters often operate in an information vacuum until the settlement demand arrives. This practice makes setting accurate reserves difficult. Social media information may help ensure reserves are more accurate, as well as uncover important leads that defense counsel can later obtain through discovery.

Why Not Use Surveillance?

In the past, adjusters often turned to on-scene surveillance to determine activity levels of injured workers. However, surveillance is expensive, more invasive and takes longer because without several adjacent days of activity outside restrictions, the plaintiff attorney or injured worker will claim surveillance results caught them on a “good day."

Additionally, by shadowing social media posts, investigators watch activity information and can recommend times when surveillance may be most beneficial, such as during an upcoming vacation or pickleball tournament. Social media investigations can help claims handlers maximize surveillance opportunities, a cost-saving benefit of the investigation.

Once injured workers seek legal representation, their attorneys will normally warn them to be careful using social media. However, few can resist the emotional lure of posting to social media, and even check-ins at locations can be an indicator of the claimant's activity. Even if the employee develops a new profile, most investigators can locate that new profile. Once the claimant hires an attorney, social media activity can change, and account access normally tightens. Public profiles may go private; however, friends of the claimant may still show rich details of the claimant's activities.

Starting with the claimant's Internet Protocol (IP) addresses can provide rich information, including social site memberships and other less obvious social media activity.

What Other Facts Can a Social Media Investigation Uncover?

Average weekly/monthly wage is the keystone to non-medical payments to a worker on a work comp claim. If the adjuster is unaware of all sources of income, they may overpay the injured worker. Social media inquiries may uncover that the claimant is continuing to work elsewhere while he or she receives wage replacement. For example, the employee may engage in multi-level marketing such as selling cosmetics or health products while still on disability. While these activities may not be outside the treating physician's work restrictions, adjusters should include that income when calculating wage loss. Social media inquiries can help determine if this occurs.

It's important, however, that the investigator doesn't focus solely on information that is negative. They must also document information that supports the claimant's injury status. This is not an inquisition. It is critical that the social media investigator documents all activity that could later appear as a trial exhibit, both positive and negative. Nor can investigators ethically attempt to gain social media access by “friending" a claimant or other means to review an account.

Challenges to Social Media Investigations

Most jurisdictions will allow social media testimony. Most judges do not find an expectation of privacy in social media posts.

Additionally, physicians (and judges) dislike deception. Presenting evidence to treating physicians of surveillance or other documentation that contradicts the claimant's version of disability may mean the physician terminates treatment.

Asking adjusters to do this investigation is not advisable. This process is complex and delicate, and investigators who specialize in social media investigations are the best answer. How the investigators preserve the evidence is vital, because simply “snipping" a post will not preserve the programming language and metadata behind the post.

Where Does the Investigation Begin?

Investigators begin with the claimant's email address. If the claimant communicates with the adjuster from secondary email addresses, the adjuster should update the investigator with this information. If the claimant seeks legal representation, the attorney for the adjuster can make a discovery request for all emails and social media account information.

When Things Don't Add Up, a Social Media Investigation May Help

Once assigned, a thorough social media investigation can conclude quickly, or it may extend over the rest of the claim's life. Investigators search popular sites based on the claimant's demographics. It's not just young people on social media, though. Many grandparents reluctantly signed onto Facebook and Instagram to follow their grandchildren.

When Can a Social Media Investigation Help?

Experienced investigators search popular social media sites, focusing on the more currently popular sites. From those sites, investigators gather information and activity, such as check-ins and other posts.

Social media users often are incredibly candid over social media, openly discussing their lives, their injuries and comorbidities that may impact healing, including mental disorders or other chronic illnesses. These posts can provide solid investigative indicators the adjuster or defense counsel can follow.

Benefits to Your Insureds of Targeted Social Media Investigations

Most judges will admit social media evidence if investigators obtain it legitimately and ethically. Whether your insured is an employer or has a third-party liability claim, no one likes deceit. Judges and doctors alike don't like to be misled.

Injured workers' digital footprints can be substantial. They are ripe for mining in cases of contested or suspect claims. Social media investigations are more economical and may be more effective than physical surveillance. And as social media use continues to grow, adjuster who rely on this investigative technique may be able to reduce costs, settle claims more quicky and obtain better claims outcomes. In fact, attorneys who represent injured workers now post blogs to warn their clients not to continue social media.

You may ask what this has to do with you as an agent. While many agents today have in-house claims coordinators who work with the carriers to ensure claims go smoothly, many agents do not.

If you don't have in-house claims coordinators, your clients may still bring problem claims to your attention. You may also notice long-standing claims on claim runs and wonder why they don't close. You can discuss the claim details with your insured or the adjuster to see if a social media investigation may be in order.

It's critical that employers allow the claims handler who understands the legal ramifications of these investigations to initiate this type of inquiry, so never advise your client otherwise.

 Last Updated: February 17, 2023

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