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Are You Killing Your ERISA Case?

Posted by David P. Martin | May 03, 2017 | 0 Comments

We all like social media. And if you are hurt or sick and can't work, it can be a great way to keep in touch. However if you are receiving a long term disability benefit or a pension disability benefit beware!

LinkedIn did help “kill” a recent ERISA case! Most people forget that what you say on social media can be harmful to your case. With ERISA the arbitrary and capricious standard of review is often involved which means a wrong but reasonable decision may leave you without a benefit you are counting on! A social media post may be just what an insurance company or plan administrator needs to justify a claim denial. Even if you have a good explanation!

A California federal judge rejected a former stunt woman's lawsuit regarding a pension disability benefit. The claim was denied in part by pointing to the stunt woman's LinkedIn and IMDb pages. The pages showed her to be working regularly, despite her claim to suffer from disabling depression. Hoffman v. Screen Actors Guild-Producers Pension Plan, (C.D. Cal.2016).

Disability insurers and pension plans recognize social media posts as a tremendous free tool. We usually find them in a claim file on a long-term disability claim or pension disability claim. These postings are used to demonstrate discrepancies with the claimant's report of her condition. They may provide a key basis to deny the claim. Remember, a wrong but reasonable decision may win the day for the insurer or plan. If that post is not explained during the claim process, a court my refuse any later explanation.

While insurers find value in this type of information, some of the information on many sites such as LinkedIn may be “stale.” Users may not update their profiles very often, or the claimant may have forgotten about an old profile.

There is also unfairness with the inferences or assumptions made by claims administrators. Many claimants have the typical “good day, bad day” roller coaster involved with their condition. Some may be able to work several days out of the month. But no competitive employment market exists to employ such a person on a full-time basis if several random work days will be missed every month.

Social media can be helpful to some individuals who cannot leave their home very often. For example, a claimant with a compromised immune system who is homebound may need the social interaction to avoid depression. However, much care and caution is needed. Anything said may be used against you!

In the case of the disabled stunt woman, the judge ruled her LinkedIn posts were “reasonable evidence” to deny the pension disability claim. Don't let that be you. Remember the Toby Keith song “I Wanna Talk About Me?” As far as social media goes, it may be better that you did talk about dreams, schemes, high school team, and moisturizer cream. For that matter even your Nana in Muncie, Indiana!

About the Author

David P. Martin

Senior & Managing Attorney


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