Long-term disability claimants are providing free surveillance for insurers by posting publicly on social media, says Toronto personal injury and disability lawyer Nainesh Kotak.
Kotak, principal of Kotak Personal Injury Law, says disability insurers have traditionally invested heavily in private investigations to discretely follow claimants and question their friends and neighbours, all to uncover discrepancies between the individual’s reported functional abilities and their actual activities.
“This is still done, but it’s much easier to track people by simply monitoring their public accounts on Twitter, Facebook, LinkedIn and other sites,” Kotak says.
“I’ve had cases where surveillance is fatal to these claims because it shows them doing something they said they couldn’t do, which destroys their credibility,” he tells AdvocateDaily.com.
Whether monitoring occurs online or in person, Kotak says LTD claimants generally don’t have much to worry about, as long as they have been forthright and honest with their insurer about their capabilities. Resisting the temptation to exaggerate is key, he adds.
“The main thing you need to do is be honest with your insurer about what you can and can’t do so that you don’t run into credibility problems down the road,” Kotak says. “If you’re able to go grocery shopping or walk around the mall, then you should say that. It doesn’t mean that you’re well enough to work, and it’s not worth the risk of getting caught having painted a picture that isn’t true.”
The nature of social media means claimants can often run into problems without meaning to, by creating posts that give a distorted picture of their physical capabilities or emotional well-being, he says.
“It’s rare to see a Facebook post where someone is talking about what a bad day they’re having or how sick they’re feeling. People tend to post only fun and positive things about themselves, so you don’t tend to get a full picture of someone’s life,” Kotak says.
Despite the potential risks posed by social media postings, Kotak says he doesn’t advise clients to shut down their accounts altogether.
“The reality is we don’t live in a private world anymore, and social media has become part of the fabric of society, so I wouldn’t encourage anyone to stop using it,” he explains. “What I would say is that if you’re involved in any sort of litigation, you should make your posts private, so that they’re only available to friends because courts are less likely to order the production of an entire account if you’ve taken those steps.”
Kotak says a number of decisions in the last decade have granted defendants access to plaintiffs’ private social media postings, but in most cases, the account holders had made certain photographs publicly available which raised questions of credibility about their reported quality of life.
“Where, in addition to a publicly accessible profile, a party maintains a private Facebook profile … it is reasonable to infer from the presence of content on the party’s public profile that similar content likely exists on the private profile. A court then can order the production of relevant postings on the private profile,” wrote then-Ontario Superior Court Justice David Brown in one heavily cited 2009 decision.
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