Gerald G. Lutkenhaus Workers Compensation Law Blog on Lawyers.com

In Virginia, recently, an insurance company requested Facebook to hand over an injured worker’s activities. Initially, on August 28, 2009 the Virginia Workers Compensation Commission ordered Facebook to pay a fine of $200.00 per day for failure to hand over the worker’s information from her Facebook site. The injured worker was a flight attendant who was under an award of compensation for a back injury she had had in January 2007 exiting an airplane. Facebook objected to the subpoena.

Somehow, the insurance company knew the flight attendant had gone on vacation.  The insuraance company wanted to check her Facebook page to see if she posted her vacation activities. The insurance company wanted to know if she was doing activities on her vacation that indicated she was not disabled by her back injury.

Facebook's response to the subpoena was:  "users such as the flight attendant rely on Facebook to protect their data and vigorously enforce the privacy decisions they make on Facebook." It adds: "Courts have interpreted the ECPA to prohibit services such as Facebook from producing a non-consenting subscriber's communications even when those communications are sought pursuant to a court order or subpoena."

On September 14, 2009 Randolph P. Tabb, Jr., a deputy commissioner of the Commission, denied the insurance company’s request for the information from Facebook citing the federal Electronic Communications Privacy Act.

There was no appeal since the flight attendant agreed to provide the information requested by the defense attorney asserting she had nothing to hide.

Since there was no appeal, the Full Commission did not have an opportunity to issue a appellate ruling on the case. This case does indicate that injured workers need to be cautious regarding what activities they display on Facebook, especially any sporting or recreational activities. As in this case, an insurance company may try to obtain this information to show the claimant is not disabled.

Copyright© 2009, Gerald G. Lutkenhaus. ALL RIGHTS RESERVED

This may be considered AN ADVERTISEMENT or Advertising Material under the Rules of Professional Conduct governing lawyers in Virginia. This note is designed for general information only. The information presented in this note should not be construed as legal advice.

Jerry Lutkenhaus is a practitioner of Workers’ Compensation and Social Security in the Richmond, Virginia area for over 30 years. He was awarded an "AV" rating by Martindale-Hubbell in 2003, for other information see www.virginiadisabilitylawyer.com and www.geraldlutkenhaus.com .