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Facebook photos doom workers’ comp claim

If you want to convince a judge that you suffer from chronic, debilitating pain, it’s probably not a good idea to have pictures of yourself carousing with your pals plastered all over the Internet.

That’s a lesson Zackery Clement should have learned before he requested an extension of temporary total-disability benefits by the Arkansas Workers’ Compensation Commission.

Let there be no doubt that Clement did indeed suffer a legitimate injury while working at a Johnson’s Warehouse Showroom in Arkansas. Clement in fact suffered a hernia on March 12, 2009, when a refrigerator he was attempting to move fell on him.

The employer through its workers’ comp insurer paid Clement’s medical expenses and temporary total-disability benefits from the date of his injury until May 10, 2010, and, when he suffered a setback, for a second time from July 15, 2010, until Aug. 8, 2010.

But when Clement wanted those benefits continued indefinitely because of continued pain in his groin as well as an alleged back injury, Johnson’s Warehouse Showroom balked.

According to the employer’s doctors, Clement didn’t have a traumatic work-related back injury. Moreover, those doctors said that further medical treatment was unreasonable and unnecessary for his compensable hernia injury.

Clement’s claim for continued benefits may have had a fair chance of succeeding because he had his own medical evidence supporting his contention that he still suffered from severe pain due to a recurrent hernia and nerve damage.

But there was the problem of certain pictures of Clement on the Internet showing him having way too much fun for a man who was supposed to be suffering from debilitating pain. 

Yes, the employer had done some poking around and discovered pictures of Clement on Facebook and MySpace. The employer introduced those photos at the administrative hearing on Clement’s claim for extended benefits. 

The pictures may well have tipped the scales because the administrative law judge rejected Clement’s claim and the state workers’ compensation commission upheld the denial of continued benefits.

The turn of events had Clement’s attorney crying foul before the Arkansas Court of Appeals, which reviewed the commission’s denial of benefits.

According to Clement’s attorney, the introduction of the Facebook and MySpace pictures in the administrative proceedings was “a disgrace to the dignity of the workers’ compensation proceedings.”

The court begged to differ: “We find no abuse of discretion in the allowance of the photographs. Clement contended that he was in excruciating pain, but these pictures show him drinking and partying. Certainly these pictures could have a bearing on Clement’s credibility, albeit a negative effect that Clement might not wish to be demonstrated to the ALJ or the Commission.” (Clement v. Johnson’s Warehouse Showroom

This case illustrates that workers’ compensation attorneys and their clients have more to fear than just the sneaky claims investigator with a camcorder.

Social media provides the potential for self-inflicted wounds with the inadvertent disclosure of photographic evidence undermining a claim of disability.

– Pat Murphy

patrick.murphy@lawyersusaonline.com

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