We recently wrote about how the Trump administration wants to expand the use of social media, such as Facebook and Twitter, in evaluating disability claims. In that post we noted that Kantor & Kantor proved, in Court, that social media posts are of limited value in deciding if someone is unable to work. What did the Court say?
The issue came before Judge Yvonne Gonzalez Rogers, United States District Court Judge in the Northern District of California. She was asked to decide if our client had proven he was disabled by back and leg pain of unknown origin. For years our client struggled to continue working as a tax professional at Hitachi despite ever increasing back and leg pain. This job required high cognitive ability, including critical thinking, decision-making, complex problem solving, and high levels of concentration.
He underwent multiple back surgeries, but this did not give him pain relief. In order to get some degree of pain relief, he had to take opioid medications. While this somewhat helped the pain, a medication side effect was difficulty concentrating. Because of the pain and inability to concentrate, our client’s work performance suffered. He had to stop working.
Sun Life and Health Insurance Company insured our client’s long term disability benefits. After the elimination period, a disability claim was submitted and Sun Life performed an evaluation of the claim. Part of the evaluation was people from Sun Life going onto our client’s Facebook and Twitter pages.
The Facebook and Twitter pages showed our client was active on social media before and during the disability period. Sun Life argued the mere fact that he was able to post coherent messages was proof that he was able to work. Sun Life ignored the fact that in many of the posts our client complained about how much pain he was in and how the inability to control his pain had devastated his life, career, and plans for retirement. All that mattered was that he was posting at all. This formed part of the basis for Sun Life to deny the long term disability claim.
At trial, Kantor & Kantor explained to the Court why Sun Life’s arguments were wrong. The Court agreed, saying:
Sun Life also argues that plaintiff is not cognitively impaired and is therefore able to work. (Sun Life Motion at 12-13.) In support of this argument, Sun Life relies primarily on plaintiff’s activity on social media, including his comments on “complex topics of economics, diplomacy, and politics.” (Id.) Sun Life provides no authority to support its argument that social media activity is evidence of cognitive ability, and the Court is not persuaded that an individual’s personal musings so provide. Sun Life also argues that Dr. Chen’s notation that plaintiff was “cognitively normal” during each of plaintiff’s visits supports its argument that plaintiff is cognitively capable of doing his job. (Id. at 12.) However, Dr. Chen’s basic medical evaluation of plaintiff’s cognitive function does not establish that plaintiff can perform his job, which required a high cognitive ability, including critical thinking, decision-making, complex problem solving, processing information, evaluating information to determine compliance with standards, and high levels of concentration. (See SSF No. 3.)
A full copy of the Court’s order is included at the end of this post, as is a copy of the Judgment in which Kantor & Kantor secured more than $305,000 in retroactive long term disability benefits to the date of disability, more than $12,000 in interest on these long term disability benefits, and recovered our client’s costs of suit and attorneys’ fees.
To learn more about this, please call Kantor & Kantor at (818) 886-2525 for a FREE CONSULTATION You can use our online contact form as well.