The Pitfalls Of Social Media In An ERISA Long-Term Disability Claim

National ERISA Long Term Disability Attorney Nancy L. Cavey  shares her wisdom in the Winning Isn't Easy Podcast. 

I'm gonna talk about three things today, and we're really gonna be talking about the wonderful or maybe not so wonderful world of social media. First, do your social media post make you a liar. What every long term disability applicant needs to know about their social media posts. Two, a federal judge doesn't buy the window tour vacation video that Unum relied on in denying claims and lessons you can learn. And then third, my social media warning that you should take. Seriously.!

Transcript

ERISA Attorney Nancy L. Cavey: 0:17

Hey, I'm Nancy K. I'm a national ERISA and individual disability attorney. And I wanna welcome you to winning isn't easy before we get started, I've gotta give you a legal disclaimer. This podcast is not legal advice, but there's nothing that will ever prevent me from giving you an easy to understand overview of the disability insurance world, the games, the carriers play and what you need to know to get the dis the insurance benefits you deserve. So off we go, I'm gonna talk about three things today, and we're really gonna be talking about the wonderful or maybe not so wonderful world of social media. First, do your social media post make you a liar. What every long term disability applicant needs to know about their social media posts. Two, a federal judge doesn't buy the window tour vacation video that Unum relied on in denying claims and lessons you can learn. And then third, my social media warning that you should take. Seriously. Let's take a break for a moment before we get started with this episode,

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ERISA Attorney Nancy L. Cavey: 1:44

Welcome back to winning isn't easy. Are you ready to get started? Do your social media posts make you a liar? What every long term disability applicant and recipient needs to know about their social media posts. Look I've said it before, and I'll say it again. Disability insurance companies, aren't in the business of pay a disability benefits. They will use every trick in the book to deny a claim. And you can be assured that your disability carrier is going to check your social media posts as part of their claims review process. And that's gonna happen when you apply for benefits when your claim has been accepted and as a tool that they will use to decide whether or not they're gonna going to terminate your benefits at some point. So what you need to know is that what's in your social media post can make or break your long term disability case. Do you know what's on your Facebook page or the friends who, who have posted about you or what's on your LinkedIn profile? You better, let me tell you the story of Ms. Maleek, a photographer for associated retinal consultants. It was a light duty type of job. And she claimed that she was to say, well, because of low back pain, as a result of moving heavy equipment and because of Gillian bar syndrome and fibromyalgia symptoms. So as always, we start with the definition of disability in the case of Malik versus Unum, which is a, a Eastern district, uh, of Michigan case, the definition of disability was an inability to perform the material and substantial duties of irreg, a patient due to your sickness or injury. And then after 24 months, the inability to perform the material and substantial duties of any occupation. Now, she complained of debilitating pain. She told Unum that her entire days were spent trying to manage her pain and that her pain severely affected or concentration making most days possible to read or even research anything. So what did Unum do? Well, guess what Unum looked at her social media accounts and what they found was that she was active in researching and writing about radiation issues from at least 2001 to at least March of 2014. In fact, they found that she wrote an article in mid, uh, 2012, in which she stated that she maintained several websites to teach people about radiation mitigation and other nuclear issues. She was even the host of a show called Nu radio, which aired on Tuesdays and Thursdays on Aion talk show network. Now it out worse because Unum checked her LinkedIn profile, which indicated she had hosted 117 episodes of the radio show between March of 2012 and June of 2013. In January of 2014, she had claimed to one of her articles that she had read over 9,000 and research papers in the last three years and had a team of approximately 20 trusted volunteers, all of whom who shared common and deeply felt policing concerns about radiation issues. Now it continued to get worse. Melik had a Facebook page. She had founded rad chick, radiation research and mitigation. At the time she was collecting her benefits. Unum checked the group's Facebook page, and that documented over 14,000 likes her own personal Facebook page documented that she had hiked several nature trails during the period of time in which she claimed that she couldn't work. And of course she checked Twitter or they checked Twitter and her Twitter feed at rad chick forecast at a 1,727 followers and 21,100 tweets. So what did Unum do with all this information? Well, they rightfully determined that she was no longer disabled within the meaning of the policy and they denied the payment of future benefits. Now Melik continued to play games. And within days of the receipt of Unum's denial letter, she presented on multipl occasions to the emergency room, complaining of pain, muscle weakness, chest pain, confusion, ex spasm, and spells. And guess what? Her physical examination at each one of these emergency room visits was normal. And every diagnostic study that was performed was negative. Now, as you can imagine, after her claim was denied, she appealed and ultimately this case ended up in court. So the question becomes, how did the court view all of this social media information? Well, to say the least as the judge was not pleased, he noted that male's substantial social media activity strongly suggested that her reported symptoms were not as severe as she claimed them to be. She or the judge rather rejected her argument, that her history of a temporary ability to devote a few hours a week to a podcast and a Facebook page from her bed was not indicative of an AB ability to hold down a job. The judge even commented that reading 9,000 studies and research papers hosting 117 episodes of a radio show, managing a team of 20 trusted volunteers and posting 21,100 tweets to our Twitter account was an not consistent with her allegation that she was spending her entire day managing her pain or that her pain affected her concentration, making it impossible to read or research anything in upholding the claims denial. The judge found that her social media activity called into question, whether her symptoms were as severe, she claimed, and he agreed that Unum had a good reason to deny her claim. So what are the lessons learned first? Don't lie to the insurance company or your doctors about the extent and nature of your physical activity. Two, turn off all your social media do not post anything. When you decide to file a claim three don't post anything. Once you're on claim four, don't allow your family or friends to post about you or post pictures. Five. You're gonna expect that the discipline insurance carrier is gonna do an investigation of your social media post, including things like LinkedIn. And lastly, don't expect the court to overturn a claim scenario if there's exaggeration or questions about your truthfulness, about your stated limitations, because if there's a conflict in the medical records and your activity of daily living forms and what you're posting on social media, more likely than not the court is going to go with what you're posting on social media. Now, I know that social media is a form of curated R but it's the nature of the post, the extent of the post, the activity that's discussed on the post in comparison to what you tell the insurance company you can and cannot do, and what you're telling your doctors. So don't destroy your claim, the social media, uh, Flury of posts or photographs. Let's take break before we head into our next section. Welcome back to winning. Isn't easy. I'm gonna talk about how one federal judge didn't buy the window tour vacation video that relies on in denying a claim. Now, disability carriers, track disability, applicants, social media posts, and they use, uh, what they find as a grounds for denying a claim or denying a claim, uh, that's being paid. And as a result of what they'll see on the social media posts, they can also assign surveillance. So before you stop working, apply for your of benefits, I want you to turn off your social media accounts and when you're paid benefits, I want you to keep those social media accounts turned off. In fact, I want you to tell your family and friends never, ever, never, ever, never, ever post anything about what you are doing on social media. And if you don't follow this advice, there's a darn good chance that you can lose your benefits just like Mr. Luna did. So let me tell you the story of Mr. Luna. He was a systems engineer and he became disabled as a result of rheumatoid arthritis, a rotator cuff injury, fibromyalgia, posttraumatic stress disorder, migraines, and thoracic back pain. Now he claimed that he had pain all over his body, that his pain level was anywhere from an eight to nine. And sometimes it was even as high as 10 out 10. He claimed that he needed the assistance from his wife and his son to bathe to dress. And even to drive Unum is one of the most aggressive disability for companies about tracking social media posts and using surveillance. If you have a Unum claim, expect them to use these denial tools in assessing the continued payment of your benefits. Now, Mr. Luna in fact had been taking RV trips and even had taken a vacation to Hawaii and he post about it. Unum ultimately puts surveillance on him because of what he has disclosed on his social media posts. And guess what the surveillance shows. It shows him walking unassisted and going into a restaurant. Now, obviously Unum used that information to deny the claim. And the case obviously ended in front of a federal judge. Luna argued that he was in a wheelchair accessible RV and that his son and his wife drove, uh, the vehicle while he was strapped into his wheelchair, looking out the window, Luna told Unum and Facebook that, you know, Facebook's not real. It's a place where you document the happy things in your life, but the judge didn't buy that. And the judge also ultimately rejected the opinions of LUS treating physicians and specialists because they had relied on his representations to them, uh, that he had pain all over his body with pain levels, as high as 10. What happened of course is that the judge said, if these doctors rely on these subjective complaints and these subjective complaints are not valid, then the opinions of the physician about Mr. Luna's ability to work also falls. Clearly the lesson is don't post on Facebook ever, ever, ever, and always tell the truth to the insurance company and your doctors about your level of functionality. Otherwise it's gonna come back and bite you and you'll have given the disability insurance carrier a weapon to deny and terminate your benefits. So don't make a mistake like doc, uh, Mr. Luna, let's take a break for a moment.

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ERISA Attorney Nancy L. Cavey: 13:20

Welcome back to winning. Isn't easy. I'm gonna tell you our social media warning, and this is a warning that I send to all of my clients. And it starts out by saying social networking could damage or destroy your disability case. Dear client, Facebook, Twitter, MySpace, and other social networks are popular with people of all age groups. You may have read about employers using these sites to screen job applicants or check up on their employees. Even high school students who apply for national honor society have learned that what they put on their Facebook pages can be used to deny them admission to the, these types of prestigious organizations. Even the Florida bar looks at Facebook pages of lawyers who are applying to be admitted to the Florida bar. Yes, I know that everyone is on Facebook and everyone is tweeting. But guess what? These sites are not just for keeping up with your friends, disability, insurance companies and their attorneys use these sites. Also disability adjusters check Facebook, MySpace, as old as it is Twitter and other accounts, to get information about you. There may be valuable information about you on these sites that could severely damage or destroy your disability claim. The disability insurance adjuster's job is to pay as little as possible or to even deny your claim. Social media sites can help the adjuster do their job. So please shut down your account today. I also add to this letter of comments about gamers. Now, if you think that you're gaming in isolation, you are crazy because I have had clients who have disclosed in other sites that they're gaming or have been track down to gaming sites. And in one particular case, my client alleged that he had difficulty sitting for more than 20 minutes and had visual difficulties, and guess what they got and got and got and got and got, they got tons of gaming information about him and even videotaped to him gaming. What do you think happened to that claim? It got denied and ultimately the case got settled for a fraction of the value of the case. So don't destroy your case. Don't destroy your case. I hope you've enjoyed this week's episode of winning. Isn't easy. If you've enjoyed this episode, consider liking our page, leaving a review or sharing it with your or friends and family also consider subscribing this podcast. So you'll be notified every time a new episode comes out. I hope that you'll tune in to the next week's insightful episode of winning. Isn't easy. Thanks.