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“Disability Denied”   A disability law blog by Ontario disability lawyer Mark Yazdani

Tips for Disability Claimants #2 – Avoid Opening a Facebook Account

Over the last several years, insurance companies have been aggressively pursuing access to claimants’ online profiles with Facebook and other social media networks. Their primary goal is to obtain photographs that depict a claimant engaged in social activities or performing physical tasks. If the insurance company feels that the photographs demonstrate a person is not disabled, or is evidence that a person has not been truthful about the extent of their activities, they may rely upon the photographs to deny a disability claim or terminate disability benefits.

Can photographs be relevant to a disability claim? The answer is yes. For example, if a disability claimant makes a claim for severe depression and tells the adjudicator that they never socialize and rarely leave their home, photographs of the claimant attending numerous social gatherings during the time she claims to be disabled would most likely be deemed relevant. While the photographs may not prove that the claimant is capable of working, they would potentially speak to the credibility and truthfulness of the claimant – both important factors in disability claims.

While photographs can be relevant to the issue of credibility, they have limited impact upon the issue of disability itself. A photograph is only a snapshot of a particular moment of time – you cannot reliably extrapolate functional abilities from them. For example, a photograph may show a disabled claimant suffering from fibromyalgia and chronic fatigue syndrome posing by a famous landmark while on vacation. The only reliable evidence obtained by that photograph is that the claimant at some point visited a landmark on a particular day and time. It does not prove she can perform her job duties on a full-time basis.

Unfortunately, however, photographs can have prejudicial impact even if they are not relevant to the issue of disability. The real danger exists that an insurance company will make improper assumptions and draw inaccurate conclusions from a photograph.

Courts in Ontario have held that photographs and other information posted on an online Facebook profile can be produced in court proceedings and used as evidence. To avoid an insurance company potentially misconstruing photographs or other information posted online, and subsequently using that information to wrongly deny or terminate a claim, it would be advisable for disability claimants to avoid opening social media accounts such Facebook, Twitter, etc.

If you already have an online profile, it would be advisable to cease updating it or adding photographs to it. It would also be advisable to restrict the account such that it is only accessible by your friends and family, and not accessible by members of the public.

If you already have an online account, are you permitted to delete it? The answer: it depends. Certainly if you are involved in litigation against the insurance company you are not permitted to destroy evidence relevant to the issues in the lawsuit. Deleting or destroying relevant photographs or deleting an online profile with relevant information could possibly be held against a claimant in court. However, there is no legal prohibition against closing a Facebook account for reasons other than to destroy evidence. In the recent decision of Schuster v. Royal & Sun Alliance, Justice Price stated, “There are many good reasons unrelated to litigation that people may have to withdraw documents from their friends’ view. Their right to do so should not be lightly interfered with.” Thus, a disability claimant has the right to close his or her Facebook account simply because they are no longer interested in participating or because they no longer wish to share information or photographs with friends and family.

If your disability claim has been denied or your disability benefits have been terminated, contact my Ontario disability law office for a free consultation regarding your legal rights.

1-877-311-8880

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