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Workers compensation fraud investigations: Old school meets new tools

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The widespread and pervasive use of social media and the internet has made it simpler to catch and easier to prosecute individuals involved in workers compensation fraud.

Prior to the Internet era, employers and the Bureau of Workers' Compensation had only limited and expensive methods and means to investigate potential workers' compensation fraud. An employer might have a “hunch” that something was unusual about an injured employees' behavior while they were receiving workers' compensation benefits.

However, proving that an injured worker was either working at a different job or engaged in other personal physical activities inconsistent with their alleged disability was expensive and difficult to document. Employers normally would have to spend large amounts of money sifting through documents and hiring private investigators.

Those times have changed.

Now, the use of technology is endless. Most of us have an Internet-connected phone with us 24 hours a day. Not only do we have this equipment at our disposal, many individuals regularly post and comment on personal and public information. Some individuals who post personal information on the Internet appear to have a false sense of the distinction between public and private information.

Tweets and Facebook postings, if not properly secured, provide little to no privacy of photographs or personal information. Webtaps of the Internet by professional and licensed private investigators can be very cost efficient and effective tools to defend or limit workers' compensation claims.

These investigation techniques are still most effective when they are prompted by a solid hunch. Many times in the context of the defense of a workers' compensation claim, an employer or their representative may notice “red flags” in the behavior of an injured worker or individuals associated with an existing claim.

Some examples include an injured worker who is off on disability benefits who cannot be contacted via telephone during daytime hours; a new claim submitted by an employee who has absenteeism and FMLA issues; an employee with a pre-existing disciplinary issue pending; and an employee who may have a personal agenda within the workplace.

One of the most significant sources of reliable information about an injured employee who is off work is “chatter” among other employees. Often, co-workers may have information or a sense that a co-worker, who is off on workers' compensation benefits, is somehow abusing the system. These types of remarks, particularly if they pertain to concrete pieces of information, should always be “red flags” to employers and cause them to consider a more significant investigation, including a review of social media.

Employers do need to be cautious about how they employ social media tools to investigate their employees' behaviors.

It is impermissible to trick an employee in order to obtain access to their Facebook page, tweets or other social media postings. However, if the information is open to the public, or if an employee's social media information is not privacy protected, then an employer is permitted to use information that they gather from social media websites to defend claims. An employer, however, cannot trick an employee into giving them access to their social media by posing as someone else.

The rise of technology and social media has made it easier for employers to successfully defend fraudulent claims. However, these 21st century tools are still most effective when combined with useful information obtained by 20th century means.

Margaret Everett writes for Crain's Cleveland Business, a sister publication of Business Insurance.