Nathalie Blanchard of Bromont, Quebec, has been on sick leave for a year and a half for long-term chronic depression.
The 29-year-old woman had her benefits cut by IBM after she posted pictures on Facebook at a male stripper show, her own birthday party and on holidays. Her Manulife representative told her that,
I'm available to work, because of Facebook.
Ironically, most of these events were recommended by her physician as part of her treatment.
Depression is not like other disabilities where Facebook has been used to demonstrate lack of impairment. The complex parameters of a psychosocial condition like depression is entirely distinct from factors such as range-of-motion, flexibility, and strength that are more commonly assessed in physical disabilities.
Thomas Lavin, Blanchard's counsel, expressed similar reservations,
I don't think for judging a mental state that Facebook is a very good tool. It's not as if somebody had a broken back and there was a picture of them carrying …a load of bricks. My client was diagnosed with a major depression. And there were pictures of her on Facebook, in a party or having a good time. It could be that she was just trying to escape.
We don't know if Blanchard was bipolar, or has a chronic pain condition that may affect the presentation of her depression disorder. Although the inability to smile can lead to depression, those that do smile and possibly appear happy are not necessarily without depression.
And if we think about it for a second, Blanchard is not likely to select the photos of her sulking in the corner onto her profile. Facebook photos go through a screening process, essentially attempting to put the "best face forward." What each person considers best, whether it's attractiveness, professionalism, interesting, provocative, or wacky, does vary from person to person. In Blanchard's case, where family and friends likely know about her prolonged bout with the blues, it is not unreasonable to expect her to at least try to look happy.
Here are some more established methods of evaluating depression, that long precede the use of Facebook photos:
- Hamilton Rating Scale for Depression (HRSD or HAM-D)
- Montgomery-Åsberg Depression Rating Scale (MADRS)
- Beck Depression Inventory (BDI or BDI-II)
- Zung Self-Rating Depression Scale
- And more.
As persuasive as Facebook photos might be to a jury, it lacks scientific reliability and validity. Insurance adjusters know this, and without corresponding clinical data to confirm any impressions, they should be reluctant to reject or terminate claims on the basis of photos alone without any context.
"Insurance adjusters…should be reluctant to reject or terminate claims on the basis of photos alone without any context."
Of course Insurance companies shouldn't do this. But this is a strategy they are using to save money. They decide how likely it will be for the person whose benefits have been cut off to sue them. If they think the person will sue them, they may not cut off their benefits. If they think there is a good chance that the person won't sue them, they will cut them off. Then the person will either go back to work or quit; in either case, the insurance company saves money. If they do think the person is likely to sue, they will then determine how likely it is the person will press through to the end and the likelihood that a court will agree with the person. If the person begins a claim and then backs down because of cost or because their illness means they cannot continue, the insurance company wins again. Even if the person pushes to the end and the court says the insurance company has to pay, the insurance company has likely not spent a lot because their lawyers are working for the company anyway so their salary is already paid (meaning they don't usually have to pay extra for a lawyer) and usually the costs awarded against them are very low.
Law is often not about what a person/organization is supposed to do – it is usually about what a person/organization thinks they can get away with.
Given the high profile of this case, do you think the adjuster will get away with it this time?
"Slaw is a cooperative Canadian weblog on things legal."
Regardless of what might go on elsewhere in the Canadian legal system, Slaw's official contributors – especially those who are or hope to be part of the legal system – should strive for accuracy, and balance, in their postings.
Commenters don't have those constraints. (We get what we pay for. Since we don't pay anything …)
The main post has the following statement: "The 29-year-old woman had her benefits cut by IBM after she posted pictures on Facebook at a male stripper show, her own birthday party and on holidays." The implication is that the benefits were cut off because of these pictures. The content of the article provides no support whatsoever for that implication. Indeed, the only relevant information in the article denies the implication.
A reader dong even a casual perusal of the CBC report referred to in the main posting here should immediately see at least the following:
1. The headline does not reflect what is in the article.
2. The article provides no proof that Manulife cut Ms. Blanchard off based, in whole or in part, on what it saw on her Facebook page.
3. The claim that Manulife acted based on something on the page is Ms. Blanchard's, supported only by her assertion that that is what she was told.
4. ManuLife has denied the accusation. ManuLife's written response, which I quote, and which should have appeared in the main post, appears in the CBC article in this context:
Finally, ManuLife is entitled to investigate, properly of course. How Ms. Blanchard uses Facebook is part of her current life. That is what it was looking at. Its decision was either made on a proper basis or it was not. That will come out in due course. There's no indication anywhere in the article that it did anything improper. Based on what's in the article, his assertions are speculation without basis.
Do I find that surprising that, today, a lawyer would make unsupported, red-herring assertions of the sort that her lawyer made, if in fact he made them? Unfortunately, no.
In the interest of full disclosure, while I do represent insurance companies, I do not represent ManuLife or IBM.
It's a bit of irony, but my Captcha words are "man" and "smirched".
David Cheifetz
Yes, David. The insurer spokesperson does claim that they do not use information from Facebook exclusively.
But without any evidence or even assertions that they used anything else specifically, I'm left to the balanced conclusion that any position to the contrary will only come out during discovery.
Specifically, I'm interested in some of the more established methods to evaluate depression. Please note that I stated,
There is no assertion of fact in the post that the decision was not made using information aside from Facebook. Only a policy argument, which you and the spokesperson from the insurance company, would agree with.
Is my description of the story a reasonable one? I think so, and it's something that almost every instance of coverage on the story seems to agree with. At least by the headlines.
I'm also not aware of any policy on Slaw requiring me or other contributors to provide what you call "balance," but if so, please do enlighten me. I always thought I was entitled to my opinion, as long as it was an informed and reasonable one.
Omar,
We'll have to disagree on whether your description of the CBC article is reasonable. I say it isn't. It isn't accurate on a key point, not on something tangential. To me, that makes it NOT reasonable.
You may well be shown to be right, ultimately, about what ManuLife did and why, but that isn't the issue I addressed.
The article provides no relevant information whatsoever as to the circumstances of Ms. Blanchard's termination.
Unless you have a private conduit for relevant information that you did not disclose, then you have no basis for drawing any valid conclusions as to what information ManuLife used.
The article provides no basis for you to form any opinion on what actually happened, so if you've done that already it's based on your pre-conceptions and biases. If you believe that's appropriate, then you believe that's appropriate.
You're entitled, of course, to speculate as to what ManuLife was doing, but your message failed to make it clear that you were doing nothing more than speculate.
For all you and I know, Ms. Blanchard's file might have been reviewed, and the decision made, by medical personnel. What did you expect ManuLife to do? Reveal Blanchard's confidential information health information to the CBC? Of course it couldn't and didn't. Can you imagine the stink if it had disclosed any information without her consent?
Assuming the CBC "reporter" who called them is at all competent, he or she knew that that what ManuLife released was it could release, without Blanchard's consent. There's a very easy way for the CBC to have got to the bottom of things, or close enough that what happened was clear enough even without ManuLife's side of things. Get Blanchard's consent to ManuLife providing the CBC a full copy of her file.
I find it telling that there's not the slightest hint in the article that anything along that line was attempted. Given the habits of reporters (to the extent I know those habits) I draw what I say is the obvious inference. (Were I one of our forthcoming guest bloggers, I'd say I'm drawing an adverse inference.)
Instead, we're told that her lawyer says ManuLife's investigation was inappropriate, without any disclosure of the basis for that statement. So, he either had none, or he saw the opportunity to get his name in the newspaper. You know what Wilde once wrote about publicity.
The issue isn't your entitlement to hold an opinion on what insurers should and shouldn't do. It's the issue of accuracy. Your post wasn't, on a key point. This place isn't US, or PEOPLE, or the National Enquirer. And, fortunately, it isn't the CBC, either. I hope we have higher standards.
As to Slaw policy, Simon Fodden sets it, not me. I expressed my view on what it should be. That's all it is. I believe accuracy is essential. If you don't, you don't. If you do, then you ought to have been clearer about the purpose of your polemic.
As for the CBC piece, its argument can be summarized in two words from a longer phrase: post hoc. You know what that means, and what that means to the validity of using the content of the article in support of an argument that ManuLife did what the headline and Ms. Blanchard accuse it of.
Perhaps the CBC reporter isn't familiar with that fallacy. Or, if he or she is, doesn't care. I'm sure you are and hope you do.
David
For those who like to turn over stones to see what's hidden, the CP item on the case is instructive. That Google time stamp is "4 hours ago".
The headline "Quebec woman's Facebook insurance battle highlights need for online prudence" doesn't point fingers; nor does, as I read it, the content.
The impression I take from the CP piece is that the case because public because Ms. Blanchard, or her lawyer, went to the media.
We're told that the case "came to the attention of local media last week".
And, that Mr. Lavin has said that "a civil suit was filed in Quebec Superior Court on Friday and the next court date in the case is Dec. 8." We're told the claim is for $275,00. Part of what I've quoted is puzzling, to me. I'm not familiar with Quebec civil procedure but I can't fathom what kind of "court date" there'd be some two weeks after the action was commenced. There's not indication in this article that ManuLife is aware of the action, let alone been served.
Mr Lavin is, not surprisingly, reported as having described ManuLife's actions as "totally inappropriate". What a surprise. Nice press release, though. Free, too. I wonder how much new business he'll get (or hopes to get) out of this.
DC
"4 hours ago" would be after this article was written. Thanks for the update David, those are always appreciated.