You’ve been seriously injured at work—whether you fell off a ladder while picking cherries in the field and broke your back or developed carpel tunnel syndrome from years of repetitive activity as an administrative clerk—you’ve been hurt while performing your normal job duties and have filed a worker’s compensation claim. You even have medical records from a doctor who your work comp lawyer referred you to.
Your injuries from work may and likely do affect your daily living. Despite the pain, you still try to enjoy all the big and small moments in life. You still try to play catch with your son on the weekends and post a slow-mo every once in a while on your very public Instagram account. You may even go out for a night of dancing to celebrate your birthday and post a video of your break dancing moves on your Facebook.
The question is…should you be posting or engaging in rigorous physical activity during the pendency of your workers compensation claim? Here is some direct input from Kesh Law’s workers comp lawyer.
Insurance companies are looking for any reason to deny your claim and limit their exposure on a case by something called apportionment. Apportionment in workers compensation means to divide or portion out an injury between multiples injuries that occurred. For example, your back injury could have been caused by work and by non-work related incidents including natural degenerative changes or from the heavy weightlifting that you have been doing daily as a part of your normal exercise regimen.
Often times when an insurance company is suspicious that an injury is fraudulent or over exaggerated, they will initiate surveillance. The goal for the insurance company is to find evidence of an injured worker engaging in activity outside of their claimed physical limitations. If your weightlifting is caught on surveillance, an insurance company will argue that your back injury is fully caused by your weightlifting and if that fails, they will argue for apportionment of the injury.
Catching an applicant in the act of lifting weights or engaging in any other rigorous activity during the pendency of their claim goes to the issues of apportionment and credibility. An applicant’s credibility can be called into question if the applicant testified under oath at any proceeding that they are unable to exercise anymore or do any such activity due to their injury. However, if they are then caught on surveillance doing the very activities that they testified to being unable to do, this raises some questions as to whether the applicant is being truthful and honest about his injuries. The credibility issues can be brought to the attention of a Judge at any legal proceeding and can potentially hurt your case.
The surveillance can then be sent to the doctor evaluating the applicant, which can influence the doctor’s opinion as to the credibility of the applicant. Your workers comp lawyer will surely fight against this. However, in some situations, there is no way to avoid the surveillance being sent to the doctor. If a doctor suspects that the applicant is not being truthful regarding their physical limitations, the doctor will flat out say in their reports that they believe that the applicant’s credibility is in question and will leave the causation of the injury up to the trier of fact. In workers compensation, that is the Judge.
If an insurance company is successful in obtaining apportionment, this will be reflected in a medical report. A doctor will indicate something like, “applicant’s back injury is 50% industrial and 50% due to non-industrial factors.”
Chances are, you were injured from having a long fall off the ladder at work or from years of typing in a position that is not ergonomically correct. It is not likely that you were severely injured throwing a ball a couple of times a year or from having a fun night out dancing with your friends. Nonetheless, insurance companies are looking for every opportunity to blame your injury on something other than work and social media is a large part of the discovery process. Any post where you are engaged in an activity that involves a body part that you claimed in your application has been injured due to work is extra ammunition against you. An injured worker must try to refrain from posting activities in order to increase the odds of winning a workers comp case.
Next time you think about posting on your social media accounts while having an open worker’s compensation claim…think again! Contact your Workers Comp Lawyer, Kesh Law, for questions regarding your social media accounts. We specialize in workplace injury cases in California and want to speak to you today.
