Let’s say you submit a TPD claim and are waiting to hear whether your insurer accepts your claim, denies it or gives it procedural fairness status. You know they’re assessing the information you provided to them – but what about the things you didn’t provide, like your Facebook posts? Can your social media posts be used as evidence?
In short, yes. Not only is it legal for insurers to consider your social media posts as evidence when assessing your TPD claim, but the case of Digby v The Compass Institute Inc & Anor  QSC 308 determined that insurers are not required to inform you when they intend to use social media as evidence. In 2018, MetLife insurers set up a fake Facebook account to spy on an insured seeking a TPD claim in the case of MetLife Insurance v Hellessey  NSWCA 307 (‘MetLife Insurance’) and used this evidence to decline the insured’s TPD claim.
How was social media used in MetLife Insurance?
In MetLife Insurance, the insured (Hellessey) was a former police officer who, after a number of traumatic experiences on the job, suffered from PTSD and depressive disorder. Hellessey ceased work in August 2010. In February 2012, she claimed a TPD benefit from MetLife Insurance and First State Super. Over the next few years, MetLife declined Hellessey’s claim on the basis that she was not incapacitated to the requisite extent three times.
A key factor in MetLife’s decision was that through their Facebook investigation they discovered posts that contradicted Hellessey’s claim of social phobia, avoidance and isolation.
Using posts of Hellessey attending and participating in horse shows other related events from early 2011 and acting as secretary of a pony club MetLife concluded that Hellessey was able to return to work, that she had a ‘wonderful time’ and that her participation in these events was ‘something in the nature of a party.’
After a somewhat lengthy trial process, the Court of Appeal found in favour of Hellessey and dismissed the above conclusions on the basis that:
- MetLife viewed the Facebook posts in isolation and at face value, without giving appropriate weight to the other evidence available;
- Other evidence available, such as medical expert opinion, suggested the horse-related activities were therapeutic and did not exclude a PTSD diagnosis; and
- MetLife relied upon their own view that the posts were contradictory to the social phobia Hellessey reported.
While the decision in MetLife Insurance favoured the insured, the case is an important reminder to be careful when using social media as social media evidence can negatively impact the outcome of your TPD claim.
WKB’s take on social media and TPD claims
At WKB Lawyers we understand that the last thing you want to be worrying about is how some blasé comment or post could impact the success of your claim. If you’re very concerned about what your social media might reveal, you can delete your accounts.
Otherwise, if you’re considering lodging a TPD claim, avoid posting:
- Any evidence of strenuous physical activity – whether it’s a photo of you playing sports, or a simple comment about enjoying a particular physical activity, evidence of this kind will not support your eligibility for a TPD claim.
- Anything that contradicts your claimed level of pain. For example, if you are claiming you require a neck brace at all times, photos that show you without one (since you have needed one) may damage your claim.
- Admitting liability/commenting on the legal process or progress of your TPD claim – social media is not the place to discuss any of these things and in doing so you may waive legal professional privilege.
- Emotional content – this is especially important if there is a psychological element to your claim. Many people pretend to be happier on social media than they actually feel. But if you’re making a claim including depression or some psychological hardship, this may damage your case.
Be sure to advise your family and friends of this as well. Suppose your claims states you can barely move, but then you get tagged in a family beach holiday — this won’t help! Additionally, it pays to be aware of how frequently you’re posting (it could be argued that extreme posting shows less disability than is being claimed).
If you have any questions regarding your TPD claim, please don’t hesitate to contact WKB Lawyers on 1800 865 225. WKB TPD Lawyers are not a generalist personal injury firm. In fact, we only do TPD claims.