Wearable Technology

Written by: Kawania James, Esq.

When an injured worker is not forthcoming about his condition, it could lead to an Employer/Insurer unnecessarily paying hundreds or thousands of dollars for a work injury that has resolved or an alleged disability that never existed. Often times Employers and Insurers will utilize investigative methods, such as surveillance and social media searches, to uncover the activity of an injured worker that he elects not to disclose. One investigative method that is gaining popularity in the world of litigation is the request for information stored in wearable fitness devices.

The development and use of wearable technology (i.e. smart watches, smart glasses) and fitness/activity trackers (i.e., Fitbit, Garmin) is on the rise. These devices are designed, in part, to monitor and track fitness data such as steps taken, calories burned, sleep patterns, etc. Likewise, many people use apps such as the MyFitnessPal and Runkeeper app to track their daily exercise, activities, sleep patterns, and eating habits. This data can be a goldmine for Employers and Insurers to use when defending a request for income benefits or medical treatment from a claimant.

It is important for litigators and claims handlers alike to be familiar with personal activity trackers, the data they create, and how to obtain and use that data to defend claims. At the beginning stages of the claim, it would be helpful for the claims adjuster to inquire about the use of wearable technology and fitness trackers/apps during recorded statements and/or informal communication with the claimant. Once a claim is in litigation and the parties are able to engage in discovery, questions regarding the use of wearable devices should be asked in written discovery requests and at the claimant’s deposition. Requests for information should also include the claimant’s username, password, and consent for obtaining such data. In addition, it would be beneficial to send requests for the claimant’s stored data directly to the company providing the tracker or app to ensure as much of the available information as possible is being obtained.

The use of fitness tracking data can potentially undermine a claimant’s claims and show that the alleged injuries are not as serious as claimed. Consider a claimant that alleges a disabling leg injury prevents him from returning to work. A personal activity tracker and evidence from health related apps can support that the claimant has maintained or increased his activity level since his alleged date of accident. Imagine how impactful it would be for a judge to hear that the claimant has consistently met his 10,000-step goal (which adds up to about five miles each day for most people) when it comes to determining if a claimant has an ongoing disability. Similarly, such information can be used to significantly decrease the value claimant’s counsel places on the case when it comes to settlement negotiations.