Individuals who seek recovery under an employment disability claim must be aware that they open the doors for scrutiny by the defendants of what they may consider private information. In general, a defendant has the right to examine all relevant medical records concerning the employee’s disability claims. In addition, the plaintiff has the right to review other information which may prove or disprove that the plaintiff was actually disabled. In the past, the primary means of documenting a disability or disproving a false claim was for the defense to retain the services of an investigator who would follow the plaintiff and examine his or her activity. For example, we previously had a case where an employee alleged that she had become permanently disabled when a supervisor jokingly shook her back and forth. The employee claimed permanent neck and back injuries. In defending the employer we reviewed all the plaintiff’s medical records and prior medical history concerning neck and back complaints. In addition, we retained the services of an investigator to follow the plaintiff and observe her public day to day activities. The investigator videotaped the plaintiff, who claimed that she had difficulty walking and could no longer exercise, running down the street after the mailman who had forgotten to pick up a package from her mailbox. Based upon the videotape the plaintiff admitted that the claims were fraudulent and withdrew her complaint.
In today’s modern age employees who allege disability should be aware that defendants are utilizing techniques beyond the use of investigators. In fact, in a recent New Jersey District Court case the judge ruled in favor of a defendant who sought disclosure of the plaintiff’s Facebook page. As part of discovery the defendant wanted to review various posts on the employee’s page which the defense believed would show that the plaintiff was not in fact disabled. The plaintiff deleted his Facebook page in order to prevent the defense from retrieving any information and the judge ultimately sanctioned the plaintiff for spoliation of admissible evidence.
The take away from this case is that employees filing disability claims should understand that various facets of their life will be probed including social media pages which they may post to. For employers, courts have acknowledged and approved the use of social media sites as part of discovery in order to disprove disability claims.
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