Worker Injury in the 'Internet Workplace'

Where Does an Internet Worker 'Work'?

Since the Internet allows people to work at a variety of locations, unlike traditional workers, the Internet workplace is less defined. Workers' compensation laws cover workers who are injured “on the job.” Thus, for Internet workers, if a worker is injured outside the course and scope of his employment, rather than off the job site, usually determines if coverage under workers' compensation applies.

Traditional workers are covered for injuries occurring at some locations beyond their principal place of work. For example, traditional workers are covered when commuting to and from a work site and lunch breaks.

Courts have expanded employer liability for foreseeable acts of its employees, thus significantly increasing employer liability for Internet workers, even if the acts only benefited the employee. The court in Davis v. Liberty Mutual Insurance, 19 F. Supp. 2d 193 (1998), found that an injury that takes place in the course of employment, when it occurs within a period of time when the employee is on duty, and in a place where the employee may reasonably be expected to be while fulfilling the duties of his or her employment contract, is a work-related event.

Similarly, the court found in Goff v. Teachers' Retirement System of State of Illinois, 713 N.E.2d 578 (1999), that an injury can be said to arise out of one's employment if its origin is in some way connected with the employment, so that there is a causal connection between the employment and the injury.

Discovery in Injury Cases

The Internet in general, and the use of social media in particular, has eroded the personal privacy of its users. In the context of workplace injury litigation, such technology allows third parties to collect substantial and qualitatively important amounts of information, which may be relevant to limiting benefits to pay medical bills and replace lost wages associated with a workplace injury. For example, innocuous Internet content, such as photographs of vacations and daily activities, as well as postings to special-interest Internet sites, can materially adversely affect an Internet workplace worker's eligibility to receive benefits to pay medical bills and replace lost wages.

Most state and federal Rules of Civil Procedure and relevant case law provide attorneys with the tools to collect information on parties and witnesses stored on the Internet. It is likely that employers of the Internet-based worker will have information concerning the activities of the injured party unavailable to employers of a traditional worker, hence disadvantaging those who work in an Internet workplace.

Employers with Internet workplaces can use any publicly available Internet information, including employee-created social network information, as long as it is relevant to a workers' compensation claim, as well as other employee-plaintiff litigation. Employers can obtain evidence informally by searching the Internet for information posted by an employee associated with a litigation.

Employers with Internet workplaces obtain even more information by requesting username and password information through formal discovery. So long as the information is relevant to the litigation, a party may obtain discovery regarding any unprivileged matter.

For example, in the case of Romano v. Steelcase, 907 N.Y.S. 2d 650 (2010), the plaintiff claimed her injuries were the fault of the defendant, and that due to those injuries she was confined to her house and bed. The Romano court granted the defendant's request for access to the plaintiff's private Facebook postings and discovered the plaintiff had an active lifestyle and had traveled to Florida and Pennsylvania during the time period she claimed that her injuries prohibited such activity.

The content of an injured Internet workplace worker's Facebook page may be either an asset or a liability, since discovery is not limited to the plaintiff's determination of what may be reasonably admissible evidence. While an injured party may be able to offer Internet postings ' or lack thereof ' particularly to special-interest Internet sites to demonstrate the nature, extent and effect of an injury (i.e., sensory losses such as eye strain related to viewing an Internet terminal resulted in a user's inability to post bird sightings on an Audubon Internet site), typically the plaintiff's Internet activity is used by the defense.

Defense

In the defense context, a critical component of litigating personal injury lawsuits is determining the extent to which a plaintiff has been injured, if at all. For example, the New York State Insurance Department reported that a worker had testified that she was unemployed while receiving workers' compensation benefits for a job-related injury, and was subsequently arrested and convicted of fraud after investigators discovered a posting on her Facebook page, which detailed her new job (see, News Release, “N.Y. State Ins. Dep't, Facebook Post Leads to Fraud Conviction” (Sept. 13, 2010)).

Defense teams use a private investigator to make this determination, particularly using photographs posted on the Internet, which may show vacations, activities and interactions with friends. Such a picture is often used by the defense to tell a story that the injured user may never have intended.

The Internet content is not limited to photographic images. Camera technology provides a tremendous amount of information on the context of a digital photograph. For defense purposes, many photos are associated with global positioning systems which automatically geo-tag digital images, recording the latitude and longitude of where in the world each photo is taken, as well as what time. The location data is then automatically embedded into each image's digital file.

Such Internet content might be used against an Internet workplace worker. For example, a woman who claimed severe disability due to wrist injuries resulting from her overuse of an Internet computer key pad, had her workers' compensation claims dismissed after it was discovered that her Facebook page contained photographs of her racing high-speed powerboats, with time and location information placing her at the race site at the same time she claimed to be participating in occupational therapy hundreds of miles away.

Jonathan Bick is Of Counsel at Brach Eichler LLC in Roseland, NJ. A member of our Board of Editors, he is also an adjunct professor at Pace and Rutgers law schools, and the author of 101 Things You Need to Know about Internet Law (Random House 2000) (available from Amazon at http://amzn.to/TUbFM2). He can be reached at [email protected].

Billions of people use the Internet for work-related purposes. According to the Pew Research Center's Internet and American Life Project, the fastest growing demographic for Internet workers is people aged 45 to 54. This is the same age group that is most likely to engage in workplace injury litigation. Internet use in the workplace results in direct and indirect harm to Internet workplace users.

The Internet workplace is a direct source of injury to Internet workplace users. Due to the Occupational Safety and Health Administration's (OSHA) record-keeping regulation (29 C.F.R. 1904), which requires employers to prepare and maintain records of serious occupational injuries and illnesses, many Internet workplace injuries are known. Internet workplace injuries include burns from overheated computer elements, broken bones from dropping computer elements on body parts, sudden onset of job-related pain usually from working in a fixed position in front of an Internet terminal, sensory losses such as eye strain related to viewing a computer screen, repetitive injuries usually related to keyboard use, among others.

The Internet has also indirectly harmed Internet workplace users. It does so by supplying information that may interfere with said users' eligibility to receive benefits to pay medical bills and replace lost wages, as offered under most state workers' compensation acts to nearly everyone who is an employee and is injured on the job.

Where Does an Internet Worker 'Work'?

Since the Internet allows people to work at a variety of locations, unlike traditional workers, the Internet workplace is less defined. Workers' compensation laws cover workers who are injured “on the job.” Thus, for Internet workers, if a worker is injured outside the course and scope of his employment, rather than off the job site, usually determines if coverage under workers' compensation applies.

Traditional workers are covered for injuries occurring at some locations beyond their principal place of work. For example, traditional workers are covered when commuting to and from a work site and lunch breaks.

Courts have expanded employer liability for foreseeable acts of its employees, thus significantly increasing employer liability for Internet workers, even if the acts only benefited the employee. The court in Davis v. Liberty Mutual Insurance, 19 F. Supp. 2d 193 (1998), found that an injury that takes place in the course of employment, when it occurs within a period of time when the employee is on duty, and in a place where the employee may reasonably be expected to be while fulfilling the duties of his or her employment contract, is a work-related event.

Similarly, the court found in Goff v. Teachers' Retirement System of State of Illinois, 713 N.E.2d 578 (1999), that an injury can be said to arise out of one's employment if its origin is in some way connected with the employment, so that there is a causal connection between the employment and the injury.

Discovery in Injury Cases

The Internet in general, and the use of social media in particular, has eroded the personal privacy of its users. In the context of workplace injury litigation, such technology allows third parties to collect substantial and qualitatively important amounts of information, which may be relevant to limiting benefits to pay medical bills and replace lost wages associated with a workplace injury. For example, innocuous Internet content, such as photographs of vacations and daily activities, as well as postings to special-interest Internet sites, can materially adversely affect an Internet workplace worker's eligibility to receive benefits to pay medical bills and replace lost wages.

Most state and federal Rules of Civil Procedure and relevant case law provide attorneys with the tools to collect information on parties and witnesses stored on the Internet. It is likely that employers of the Internet-based worker will have information concerning the activities of the injured party unavailable to employers of a traditional worker, hence disadvantaging those who work in an Internet workplace.

Employers with Internet workplaces can use any publicly available Internet information, including employee-created social network information, as long as it is relevant to a workers' compensation claim, as well as other employee-plaintiff litigation. Employers can obtain evidence informally by searching the Internet for information posted by an employee associated with a litigation.

Employers with Internet workplaces obtain even more information by requesting username and password information through formal discovery. So long as the information is relevant to the litigation, a party may obtain discovery regarding any unprivileged matter.

For example, in the case of Romano v. Steelcase, 907 N.Y.S. 2d 650 (2010), the plaintiff claimed her injuries were the fault of the defendant, and that due to those injuries she was confined to her house and bed. The Romano court granted the defendant's request for access to the plaintiff's private Facebook postings and discovered the plaintiff had an active lifestyle and had traveled to Florida and Pennsylvania during the time period she claimed that her injuries prohibited such activity.

The content of an injured Internet workplace worker's Facebook page may be either an asset or a liability, since discovery is not limited to the plaintiff's determination of what may be reasonably admissible evidence. While an injured party may be able to offer Internet postings ' or lack thereof ' particularly to special-interest Internet sites to demonstrate the nature, extent and effect of an injury (i.e., sensory losses such as eye strain related to viewing an Internet terminal resulted in a user's inability to post bird sightings on an Audubon Internet site), typically the plaintiff's Internet activity is used by the defense.

Defense

In the defense context, a critical component of litigating personal injury lawsuits is determining the extent to which a plaintiff has been injured, if at all. For example, the New York State Insurance Department reported that a worker had testified that she was unemployed while receiving workers' compensation benefits for a job-related injury, and was subsequently arrested and convicted of fraud after investigators discovered a posting on her Facebook page, which detailed her new job (see, News Release, “N.Y. State Ins. Dep't, Facebook Post Leads to Fraud Conviction” (Sept. 13, 2010)).

Defense teams use a private investigator to make this determination, particularly using photographs posted on the Internet, which may show vacations, activities and interactions with friends. Such a picture is often used by the defense to tell a story that the injured user may never have intended.

The Internet content is not limited to photographic images. Camera technology provides a tremendous amount of information on the context of a digital photograph. For defense purposes, many photos are associated with global positioning systems which automatically geo-tag digital images, recording the latitude and longitude of where in the world each photo is taken, as well as what time. The location data is then automatically embedded into each image's digital file.

Such Internet content might be used against an Internet workplace worker. For example, a woman who claimed severe disability due to wrist injuries resulting from her overuse of an Internet computer key pad, had her workers' compensation claims dismissed after it was discovered that her Facebook page contained photographs of her racing high-speed powerboats, with time and location information placing her at the race site at the same time she claimed to be participating in occupational therapy hundreds of miles away.

Jonathan Bick is Of Counsel at Brach Eichler LLC in Roseland, NJ. A member of our Board of Editors, he is also an adjunct professor at Pace and Rutgers law schools, and the author of 101 Things You Need to Know about Internet Law (Random House 2000) (available from Amazon at http://amzn.to/TUbFM2). He can be reached at [email protected].