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Facebook used as evidence in Workers' Compensation case

A New York woman who was collecting Workers' Compensation was caught bragging on Facebook about her salary and job as an apartment complex manager. She pleaded guilty of stealing nearly $9,000 in undeserved Worker's Comp benefits and was sentenced to three years probation for fraud, according to the New York State Insurance Department.

Alexis Muniz, of Accord, N.Y., was accused of lying at a Workers' Compensation Board hearing when she testified that she was not working in any capacity while collecting benefits for a job-related injury while working for a previous employer.


Web users now spend more time on Facebook than they do on all aspects of Google. The Internet has changed the face of litigation and we can expect to see more information obtained through social networking sites admitted and used as evidence in Workers' Compensation cases.

Worker awarded $160,000 over Amtrak injury, retaliation

(Parts of the following are excerpted from a story by Mike Lindblom appearing on the Seattle Times website on August 31, 2010.)

Amtrak has been ordered to pay a Seattle cleaning worker more than $160,000, after a judge found that supervisors retaliated against her for reporting an on-the-job ankle injury.

Nicole Anderson was carrying garbage bags from a train platform to a pickup truck at King Street Station when she stepped down 12 inches onto unstable gravel and rock and sprained her ankle on Oct. 1, 2007. She fully recovered, but supervisors fired her a few weeks later—saying she failed to exercise "common sense"—then reduced that to a 30-day suspension, plus four days for missing a later safety meeting.

According to OSHA, Amtrak retaliated against her reporting her ankle sprain. Amtrak appealed, but U.S. Department of Labor administrative law judge, Steven Berlin ruled that Amtrak violated the 2007 amendment to the Federal Railroad Safety Act prohibiting harassment or intimidation for reporting on-duty injuries. This is the first retaliation case that has reached a judge since the law was revised to add the additional worker protections.

Anderson was awarded $2,667 for lost wages, $60,000 for the trauma of being fired and $100,000 in punitive damages, meant to improve Amtrak's behavior.


According to Lindbolm's article, some of Berlin's findings offer a cautionary tale for job sites of all kinds:

  • Anderson was asked repeatedly if she wished to file a report, seemingly to discourage her from doing so.
  • Supervisor pay is based partly on injury statistics—a system likely to deter full reporting. Berlin said Amtrak should revise the policy.
  • Anderson was blamed for a lack of caution before the internal investigation, which turned out to be cursory.
  • Uneven or damaged ground surfaces were typical around the station, even as the railroad declared safety a top priority.

Doctor's return-to-work certificate outweighs employer's 'common sense' concerns

The case involved Heather Spees who became pregnant shortly after being hired as a welder by James Marine Inc. (JMI). When she informed her foreman, he asked Spees to talk to a doctor and get a note that described what she could and could not do.

After reviewing the welding position and work conditions, Spees' doctor told her that there was "no problem" and produced a "Certificate to Return to Work," releasing Spees to work without restrictions. In spite of the release, Spees' foreman felt "common sense" dictated that there were "some questions about her being pregnant and being able to safely perform the job that she was required to do." Her foreman also based his opinion on Spees' complications during a prior failed pregnancy.

JMI requested that Spees obtain another doctor's note, this time containing a mention of "toxic fumes" and limiting her to "light duty." Spees was told that this note would enable a transfer to the tool room, which would allow her to remain employed by the company. Spees obtained the requested note and was removed from her welding duties and transferred to the tool room.

Spees worked the daytime shift in the tool room for a week, but then was transferred to the night shift, which conflicted with Spees child-care schedule. A month later, Spees transferred her medical care to another obstetrician, who discovered that Spees had a pregnancy-related medical condition that required total bed-rest. When Spees provided documentation to the company of that fact, the supervisor told her that she was being fired and she had not worked at JMI long enough to have earned FMLA or other additional medical leave.

The district court granted summary judgment for JMI on all of Spees' claims; however, The Sixth Circuit reversed the decision regarding the transfer, but upheld the dismissal of the termination claims. Citing International Union, UAW v. Johnson Controls Inc., 499 U.S. 187 (1991), the court noted that an employer's safety concerns were a permissible ground for restricting a female employee's job opportunities only where a pregnancy actually interfered with the employee's ability to perform the job. Congress made clear that the decision to become pregnant or to work while being pregnant was reserved for each woman to make for herself.

The court also found that a jury could find that JMI "regarded" Spees as having a disability and transferred her as a result of this perception.


The Court's opinion emphasizes the point that an employer cannot make a decision based on subjective information, even if that decision seems to be in the employee's best interest, and cannot supersede the diagnosis of a treating physician.