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Find Solutions & Strategies January 24, 2011 |
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Sex, Lies and Videotape
Injured worker's pornographic videos posted on the Internet show violation of his medical restrictions | |
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A Note From the Editor | | Dear WC Professionals:
I've recently rented "The Social Network" and it got me thinking about all things Internet and workers' comp this past week. So I've dug up some interesting workers' comp cases using the LexisNexis services. Here's the first case from North Carolina in my ongoing series on the use of the Internet and social media as evidence in comp cases. Sincerely, Robin E. Kobayashi, J.D.
LexisNexis Editorial & Content Development
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Workers' Comp Profile
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Colorado Workers Comp Blog, published by Richard E. Falcone, Esq. One of the best written blogs for practitioners, Colorado Workers Comp Blog is an award winning source of news, commentary, legislative and administrative updates, and judicial decisions on Colorado Workers' Compensation law and Social Security Disability law. Colorado Springs Attorney Richard Falcone writes from the perspective of the injured and disabled worker in an engaging and informative style, focusing on current topics such as the use of social media by clients, injuries from high heels, employer surveillance of injured employees, and Pinnacol Assurance, Colorado's state-chartered worker's compensation insurance fund. The Blog was named a Top 25 Blog for 2010 by LexisNexis.
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featured article |
Sex, Lies and Videotape: Injured worker's pornographic videos posted on the Internet show violation of his medical restrictions, by Robin E. Kobayashi
This is the first in a series on the use of the Internet and social media as evidence in workers' compensation cases.
Mark Zuckerberg, CEO of Facebook, has said "You have one identity. The days of you having a different image for your work friends or co-workers and for the other people you know are probably coming to an end pretty quickly... Having two identities for yourself is an example of a lack of integrity." [See The Facebook Effect, by David Kilpatrick]
Regardless of whether you agree or disagree with those who find Zuckerberg's statements "fraught with problems, ignorance, and arrogance" [see MichaelZimmer.org], this concept of having dual personalities was never more apparent than in a 2010 decision by the North Carolina Industrial Commission in which an injured worker was a healthcare technician by day and a pornographer by night.
More importantly, the case sheds some light on how the Internet has impacted questions of evidence and discovery in workers' compensation law.
At a hearing before a Deputy Commissioner, the defendant, a self-insured employer, sought to admit into evidence graphic visual depictions of plaintiff performing sexual acts to show that plaintiff was violating his medical restrictions in various ways and that the material was created while he was out of work receiving workers' compensation disability benefits. Plaintiff objected, challenging the material's relevancy and asserting that the probative value of these items was outweighed by their prejudicial effect.
The Deputy Commissioner overruled plaintiff's relevancy objection pursuant to North Carolina Rule of Evidence 401, finding that there were some dates associated with the videos that had been posted on the Internet and such dates were subsequent to plaintiff's date of injury; therefore, the videos were created during a time period relevant to this claim.
The Deputy Commissioner further determined that the prejudicial effect of the contested evidence was significantly outweighed by its probative value and easily complied with the standard for admission under North Carolina Rule of Evidence 403 in three specific instances: > Read more. |
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Larson's spotlight: 5 recent cases you should know about |
Larson's Spotlight reports noteworthy workers' comp cases each week. This list was compiled by Thomas A. Robinson, a staff writer for Larson's Workers' Compensation Law, the nation's leading authority on workers' compensation law.
#1 - OH: When is a "Claimant" Not A Claimant? As It Was With the Clinton-Lewinski Case, It Depends Upon What the Meaning of "Is" Is#2 - VA: High Court Allows Horseplay Claim of Non-Participating Victim #3 - NY: Modification of Average Weekly Wage Was Appropriate Where Injured Worker Was Younger than 25 at Time of Injury and Worked Only Part-time #4 - OR: Loading Coffee into Truck, Not a Sneeze, Caused Worker's Herniated Disc #5 - NY: Delay in Giving Employer Notice of Injury Excused |
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top 10 must-reads in the blogosphere & beyond |
We recommend the following workers' comp-related articles recently posted in the Blogosphere and Beyond:
1. TPA pay deals raise concerns - Buyers seek clarity on fee arrangements in vendor contracts, by Roberto Ceniceros, Business Insurance
2. Lawsuit Loans Add New Risk for the Injured, by Binyamin Appelbaum, The New York Times
3. Insurance Adjuster Attempts to Use Nurse Case Manager Against Injured Worker's Interests, by Jodi Ginsberg, Georgia Workers Compensation Law Blog
4. Strained States Turning to Laws to Curb Labor Unions, by Steven Greenhouse, The New York Times
5. Toward a 21st-Century Regulatory System, by Barack Obama, The Wall Street Journal
6. E-Discovery Sanctions Reach All-Time High for Litigants and Lawyers, by Debra Cassens Weiss, ABA Journal
7. A workers' comp scandal, by Jeremy Smerd, Crain's New York Business
8. The True Mover (Workers' compensation in the U.S. is becoming an underwriters' nightmare and perhaps the trigger for the oft-predicted hard market), by Dan Reynolds, Risk & Insurance
9. Longtime Workers' Comp Veteran Greg Krohm Shares Insights, Risk & Insurance
10. Questioning the Evaluating Physician, by Bill Zachry, Risk & Insurance |
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blog round up at the lexisnexis workers' compensation law community |
Workers' Comp Fraud Blotter - Recent Arrests, Charges, Convictions, Investigations - 1/20/2011. Read it.
Sometimes It's Not Just About the Law: Reflections on My Cat, by Cassandra Roberts. Read it.
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what's new in larson's workers' compensation law | Lexis.com subscribers to Larson's Workers' Compensation Law can link to the chapter discussion below. Find out more about how to become a Larson's online subscriber by contacting: [email protected].
Construction Worker's Death After He Had Been Dismissed for the Day Found Compensable. In Clawson v. Burrow, 2010 Tenn. App. LEXIS 306 (Apr. 30, 2010), a Tennessee appellate court affirmed summary judgment to an employer on exclusive remedy grounds where a construction zone "flagger" was struck and killed by a car that had veered off the highway, plowing into the decedent as she stood behind her personal vehicle that she had parked along the side of the road in an area that had been approved by the employer. That the incident occurred after the decedent had been dismissed for the day and while she was talking to co-workers was insufficient to remove the accident from the course and scope of the employment. [See Ch. 21, � 21.06[1][a] n1.1]
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