And this is a blog dedicated to Mississippi Workers' Compensation
How active are you?
As I type this in my office, I have my window open as it is now over 80 degrees. Did I mention it is only March 1? Spring has arrived much quicker than I would have anticipated. While I generally enjoy the longer, warmer days, that also means I have to start cutting my grass, fight off allergies and get in better shape before beach season arrives.
My wife and I have been walking our kids in the afternoon lately with the change in seasons for exercise and to enjoy the outdoors. Of course, when I say walk, I mean we walk while the kids cruise around the neighborhood in the “blue car”.
I do not necessarily monitor my exercise (although I probably should), but so many people have incorporated fitness tracking into their daily lifestyles. How many of you now use a Fitbit, Garmin, Apple Watch, etc.? I would guess a significant amount of you do. By that same token, many workers’ compensation claimants are using them as well.
This brings forth a new, modern approach for employers and carriers to investigate claims. When initially investigating a claim, it is important for claims handlers to ask whether or not such devices are utilized by the claimant. Once the claim later becomes litigated, a formal request for the data from the use can be made through discovery. At the appropriate time, your attorney can ask for the username, password and consent for the stored data. A request can then be made to the company who manufactured the tracker to ensure we are able to obtain all of the information in a timely manner. If the claimant refuses, the argument then shifts to whether or not the claimant is deflecting from the significance of his/her injury. If so, video surveillance could be considered in order to see if the claimant can be caught performing fitness-related activities inconsistent with his/her complaints.
For instance, oftentimes when I depose a claimant, the ongoing symptoms are suddenly more debilitating than under normal circumstances. Whether it be by design or by instruction, many times a claimant will embellish the amount of pain they are in at a deposition through their actions, or by listing all of the activities the injury precludes them from participating in. You all know the type of claimant I am speaking about.
If the claimant testifies they can barely walk as a result of the work injury, wouldn’t it be nice to know what they do away from doctors and attorneys? As many of you know, fitness tracking devices, depending upon the make or model, can show the amount of steps taken, heart rate, eating habits, sleeping patterns, etc. If a claimant testified he/she was barely able to walk, but the data from their tracking device indicated the claimant was taking upwards of 7,000 steps per day (the average amount for an American), then we would certainly know the claimant was more capable than his/her testimony would suggest. Once we are able to obtain the data, we could present the information to the claimant’s treating provider for a proper determination as to the extent of an injury.
Of course, many claimants (or their attorneys) will have them delete the information after the deposition to help shield from their true physical capabilities. However, the technicians will be able to make a determination as to the exact time the data has been erased. If the information is “magically” erased immediately after a deposition, for instance, then that information can be relayed to the Commission or treating providers too. We can then make an argument that there is a presumption the device showed physical activity that would have harmed their case.
Going forward, if you are in claims handling, I recommend that you incorporate a line of questioning related to exercise tracking devices. While this may not apply to every case, the devices are becoming more prevalent by the day and this is another avenue to explore when investigating claims.
3/2/2018 09:17:59 am
We have successfully used social media data to defend cases, but I had not though about using fitness tracker data. I use a device which others have access to in a effort to create accountability. I get called out when I miss a workout because they know when my heart rate didn't go up. Now it can be used for a different kind of accountability.
Leave a Reply.
Attorney with Markow Walker in Ridgeland, MS