Increasingly, employers seeking to refute work injury claims are culling information from a variety of sources, including your digital profile, employment records and witness statements.
It’s easy to underestimate how an offhand remark or photograph online may affect your Spartanburg workers’ compensation claim. The recent case of Fore v. Griffco of Wampee, Inc. before the South Carolina Court of Appeals reveals how such items can find their way into evidence.
This case started with what was unquestionably a compensable work injury in South Carolina. For three years starting in 2005, the worker was employed as a meat cutter, and was responsible for unloading trucks, cleaning and rotating coolers and typically carried items weighing between 40 and 80 pounds every day. Then in 2008, the worker was injured when she bumped into a piece of heavy equipment while carrying some 60 pounds of meat.
Several months later, the worker had quit her job and moved out-of-state to Georgia. Still, a single commissioner overseeing her workers’ compensation claim agreed she suffered injuries to her back, hip and right leg that warranted benefits. She was granted compensation for all reasonable medical expenses, and was awarded temporary total disability beginning on her last day of work with her former employer.
She subsequently underwent a lumbar fusion back surgery, but it was not successful and, as her doctor would later testify, resulted in failed back syndrome. She was limited to sedentary work with restrictions on moving and lifting and ordered to continue physical therapy.
Not long after,she began working as a clerk at a bail bonds company. She told her doctor she was working three hours daily in an office setting, though later evidence revealed she was in fact working 20 hours weekly and acting as a courier, paid in cash.
Still, her condition was not improving, and her doctor indicated she was unable to work until further notice. The next year, she quit her job indicating the pain of having to alternate sitting and standing positions was too overwhelming. However, her former boss would later testify she was working up to 30 hours weekly at that point and said she needed more hours to cover her child’s daycare expenses.
Her doctor recommended additional surgery, but she declined, saying the chances of success were only 50 percent, and she couldn’t endure the pain of recovery while caring for a young child. She reached maximum medical improvement in February 2011 and was assigned a disability rating of 36 percent.
Meanwhile, she was approached by a competitor of her former employer, who asked if she would work for him. He was also a longtime friend, and she indicated she was helping him out because he was suffering serious health issues. She took over many of the operations, but would later say the physical work required was minimal.
Her former boss submitted a letter to the state workers’ compensation commission alleging she was committing insurance fraud. An investigation was launched. The former boss began tailing his ex-employee, later submitting video footage of her entering and exiting a vehicle with no obvious trouble, squatting low to lift merchandise and a copy of her Facebook page profile in which she listed her self as “self-employed” and indicated she was available for hire.
Still, a vocational consultant indicated she was totally vocationally disabled. She requested a hearing with the commission asking for a lump sum award or, in the alternative, a finding of greater than 50 percent loss of use of her lower back.
Weighed into this request was the letter sent from her former boss to the commissioner alleging fraud, as well as the information culled from social media. The single commissioner denied her request to omit this evidence, and later found she suffered 40 percent disability to her back, and credited the former employer with overpayment.
The worker appealed. The appellate court found that while the letter submitted into evidence did not amount to hearsay or ex parte communication, it nonetheless should not have been considered in the record. That’s because those record were part of an allegation that had not yet been proven, and was therefore privileged and should not have been allowed in any part of a public record.
Accordingly, the appellate court reversed and remanded for a new determination of benefits.
Those suffering work injuries should always be mindful of how their communications regarding their injury might be construed. The best course of action is simply to limit commentary regarding the injury or work status to the courtroom.
If you have been injured at work, contact the Lee Law Offices at 800-887-1965.
Fore v. Griffco of Wampee, Inc., June 30, 2014, South Carolina Court of Appeals
More Blog Entries:
Carbajal v. Precision Builders, Inc.: Employees and Independent Contractors in Workers’ Compensation Cases, July 20, 2014, Spartanburg Workers’ Compensation Lawyer Blog