Worth a Thousand Words

• Lori Chordas
• January 2014
• 

The last thing someone with a workers' compensation claim due to a debilitating back injury should be doing is engaging in a potentially harmful activity like skiing or skateboarding. But pictorial recollections of those events may tell a different story.

Social media is opening up a lot more than just conversations among old friends. It's also the window to a world of what were once hidden unknowns.

And workers' compensation--and the fraud that sometimes accompanies those claims--may never be the same, thanks to social media sites such as Facebook, Instagram and Twitter.

But what's the legality behind YouTube videos, Facebook postings and photo-sharing sites in detecting fraudulent workers' comp claims?

Some claimants become their own worst enemies by posting pictures, an employment status or other information on a Facebook account or a similar site that investigators can use as evidence, said Matthew Hawley, a workers' compensation attorney in Wakeman, Ohio. "It's kind of six degrees of separation. Everyone is so connected now that all the information they put out there could be used against them."

Recent litigation echoes that sentiment. Over the years, a number of workers' comp claimants have either been denied or lost benefits because of things posted on sites such as LinkedIn or Pinterest.

Take, for instance, a case in Arkansas in which the state court of appeals ruled that photos posted on Facebook and MySpace of a man "drinking and partying" could be used as evidence to deny him further workers' compensation claims.

Zackery Clement, who received compensation for medical expenses and temporary total-disability benefits for more than a year for a hernia caused after a refrigerator fell on him while on the job, lost his request for further workers' compensation benefits after the pictures were presented.

Tech's Telling Tale

Each year, more than 4 million Americans suffer some type of workplace injury or occupational illness. However, studies find as many as 25% of all filed claims contain some element of workers' compensation fraud.

Enter social media to help drive down those numbers.

"It's amazing the types of information people put out on those sites," Hawley said. "From an employer's perspective, they may have employees discussing work incidents right on their Facebook page. Or from an injured worker's perspective, they may be posting about their recent trip or skiing expedition. Even if it may not determine whether an injury took place, it does often work against an injured worker when claiming additional benefits, lost time or extended disability."

Social media recently helped CNA win a verdict in a multimillion-dollar lawsuit filed against the commercial lines carrier.

Posts revealed a claimant, who alleged he was unable to work due to a traumatic brain injury caused by an auto accident, "fully engaged in producing movies and was selling himself as a producer," said Tim Wolfe, who heads up CNA's special investigations unit. "We were able to gather that evidence before he caught on and shut down his site, and use that information in court."

Cases like that are becoming all too common, said James Quiggle, spokesperson for the Coalition Against Insurance Fraud.

"The mining of social media for clues that could validate an honest claim or disapprove or expose a dishonest one has moved from a 'gee whiz' new tool into a mainstream arrow in the quiver of many workers' comp insurers," he said. "It's a very forward-reaching trend now and will continue to spread."

What first began with investigators manually plowing through sites such as Facebook and Twitter to uncover information "is now the use of text-mining software by more advanced insurers to automate and speed up the mining of clues," Quiggle said. "That increases the breadth and depth of social media probes and gets to the heart of a claim much faster and more accurately."

A picture certainly can tell a thousand words. "A true incriminating post or photo can be a slam-dunk denial of a claim without a lot of resistance from the worker, or clues can be subtle or gradually add to the pile of information that builds to a crescendo about claimants' honesty or dishonesty," Quiggle said. "People also love to brag on those sites about how they scammed their insurance company."

Today, the coalition reports, about 36% of companies use social media as part of their investigations.

Mining those sites has become "an integral part" of CNA's investigations protocol for workers' comp claims, Wolfe said.

"We use social media on the front end when people are applying for policies to ensure that business classification information we are given is accurate, and we can use it to confirm a claimant's alibi. If someone posts that they're doing something at a certain date or time, that can be used to support their alibi. So social media can be used to verify claims as well as to controvert or shoot them down if fraud is discovered."

Posts and pictures also can depict the status of an individual's activities, he added. "One thing we might see with people receiving workers' comp benefits is that they're running a business on the side or are engaged in some sporting activities that they're keeping from us. In cases where we are suspicious about their injury, we can locate someone who may be evading us, discover that they may be engaged in energetic hobbies such as hang gliding or mountain climbing, then conduct surveillance to capture those activities on film."

But while investigators rely on social media, companies should remember that "it isn't an end-all in the investigation process," noted Brian Wilson, vice president and head of Zurich North America's special investigations unit. "It's certainly a significant element to consider in a probe. However, it's not a substitute for other methods. Instead, it's a complementary resource to other means used in an investigation.

Presented Into Evidence

Courts are fairly permissive in allowing insurers to investigate social media for clues, Quiggle said. "In fact, mining those sites is much like using video surveillance to look for case leads."

One thing courts are leery about, however, is "letting investigators 'friend' fraud suspects who have legal counsel," he noted. "That's a very treacherous ground of deception that could get insurers in some trouble with the courts."

Presenting oneself as someone else in order to obtain private information, or what's commonly known as pretexting, is something carriers and investigators should avoid, Quiggle cautioned.

"We have to be careful in how we obtain information from social media," Wolfe said. "There are different laws in different jurisdictions; this is an area of law that's evolving because it's quite new territory. Some states prohibit investigative pretexting, so we have to be very careful that our actions do not violate privacy laws."

Zurich North America relies solely on "publicly accessible, open-source sites," Wilson said. "Whatever it is we're looking at is unrestricted and available to us to look at. The information, whether we are using it to corroborate data at hand, to contradict information or just give us a new lead, is a first step and something that has to be verified or developed further by some other means in the investigation."

Are claimants becoming more attuned to the implications social media may pose?

"Many workers' comp and personal bodily injury attorneys now advise clients not to post anything on those sites about activities that could come back to bite them," Wolfe said. "However, I still think most people are unaware of this. One reason why social media is so popular is because millions use it every day. People like to share their information and put everything out there, so we take full advantage of that as we investigate suspicious claims."

More to Come

Social media is here to stay, he said. "And as long as people are posting on Facebook, Twitter, Foursquare or other sites, investigators will be hot on their trail for clues that will prove or disprove a claim.

"Software is getting better, and insurers that use text mining as a broad strategy are adding the mining of social media to that as an expanded part of that overall approach," Quiggle said.

CNA recently introduced predictive analytics technology to "help detect fraud that flies under the radar and identify those suspicious claims not picked up by adjusters," Wolfe noted.

"We can bolster this program by incorporating social media data that will help indicate if someone is active on the Web," he added. "We can pull in that information to help expand our capabilities and identify additional leads for investigation."

Information will continue to change and new sites will come online, Wilson said, "so we need to remain current with what's available for investigators and how that may aid in their investigations."

Learn More

CNA Insurance Cos.

A.M. Best Company # 018313

Distribution: Branch offices, agencies

Zurich Insurance Group

A.M. Best Company # 086976

Distribution: Multichannel

For ratings and other financial strength information visit www.ambest.com.

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The Bottom Line

Mining social media sites like Facebook and Twitter can not only reduce overall workers' compensation claims costs, but it can also help drive down what often can be fairly costly investigation expenses "by focusing our efforts on leads that are more likely to produce results," said Tim Wolfe, the head of CNA's special investigations unit.

"Carriers' investigative units want to spend time and resources on claims where we suspect people are trying to defraud us," he said. "It's not just a question of trying to determine if fraud is present on claims but also verifying those that are legitimate so that we can pay what we owe as quickly as possible."

Insurers are taking a stand. Recently, federal workplace insurer Comcare issued fraud guidance encouraging government officials to be on the lookout for injured colleagues posting pictures on social networking sites. Recently, more than 150 allegations of fraud were made against workers or health care providers in the Comcare system and federal prosecutors are currently pursuing several cases.

One thing carriers and investigators need to keep in mind, said Brian Wilson, vice president and head of Zurich North America's special investigations unit, is that "information on social media sites is time-sensitive. So if someone takes something off a site, you may have just a limited window of opportunity.

"There also needs to be an understanding that many types of sites are out there," he added. "So it's important for companies to stay current on how they evaluate and evolve their social media resources."

By Lori Chordas, senior associate editor, Best's Review: Lori.Chordas@ambest.com