Chris Niemiec, Partner, Jacksonville

 

I recently took the deposition of a Claimant who was alleging a knee injury with ongoing complaints of pain and difficulty walking. To my surprise, he was wearing a Fitbit device on his wrist during the deposition. Wearable devices manufactured by companies such as Fitbit, Apple, and Google are designed to measure the wearer’s activity levels by collecting data using sensors that monitor information such as the user’s location, vital signs, sleep patterns and physical activity.

Attorney Niemiec: How many steps did you take today?

Claimant: 2,171

Attorney Niemiec: How many steps did you take yesterday?

Claimant: 6,914

Attorney Niemiec: Does the device show you how many steps you have averaged this week so far or last week?

Claimant: The average so far this week is 29,999 steps. That’s from Sunday through today, which is Thursday.  A full week last week I took 43,659 steps.

The first known U.S. court case to use data from a wearable device was in 2015. A Florida woman was charged with tampering with physical evidence and making a false report to an Agency of Public Safety while traveling for work in Lancaster County, Pennsylvania. The woman claimed that she was physically assaulted and told investigators that she lost her Fitbit during the struggle with her attacker. In addition to other evidence collected at the scene that did not match her story, officers found the woman’s Fitbit device and accessed it with her permission.  Information collected from the Fitbit showed the number of steps taken by the woman leading up to the alleged assault. The information showed that she was awake and walking around the entire night and did not go to bed as she claimed. Based on the evidence and information collected from the Fitbit, investigators determined that the woman fabricated the entire incident.

From a Workers’ Compensation perspective, the data from a wearable device could be used to impeach the statements made by a Claimant to an adjuster during a recorded statement, to an authorized treating physician, or during a deposition if the data reveals activity levels significantly greater then claimed.  As these wearable devices continue to grow in popularity, our opportunities for using the collected data to our advantage in the defense of a claim will only increase.  

Our firm offers an excellent seminar titled Taking an Effective Recorded Statement, which details the multiple topics that should be addressed when questioning a Claimant following an accident.  When taking your next recorded statement, I highly recommend asking the Claimant if he/she is currently wearing or ever wears a device such as a Fitbit or Apple watch, as it may lead to additional questions regarding their activity level before and after the accident.  Furthermore, by knowing that a Claimant uses a wearable device as a result of reading the recorded statement transcript, we can then request a copy of the data and/or further inquire about their ongoing use of the device during claimant’s deposition.

Now, it’s time for me to get some doctors conferences scheduled to discuss Claimant’s testimony regarding his Fitbit data in an effort to get him placed at maximum medical improvement.  Sidebar: At the deposition, I wore an Apple watch and the Claimant’s attorney asked me, while on the record, how many steps I had taken that day.  My reply, 820 steps, which happened to be 1,351 steps less than the Claimant!!!