It all starts innocently enough. As an employer, you enjoy a positive, upbeat relationship with your claims adjuster at SAIF. You exchange emails about a claim, and you write something like this:
Months later, during a hearing in which Mr. Smith is disputing his termination, his lawyer produces this subpoenaed email and presents it as evidence linking his firing with his injury and claiming discrimination. The lawyer also produces more emails from the same source, claiming libel and slander, both serious allegations.
How did this happen?
Email has, for many, become a replacement for phone conversation and often has a casual tone. However casual or inconsequential the email is, as long as it references the claim, it must be saved as a document and becomes part of the "record" in a claim file. In other words, your email regarding a claim is never "off the record."
Employers aren't the only ones who put themselves in a legal danger zone once they click "Send." Injured workers' emails are also considered part of the claims record and can be used as evidence in a legal hearing. In fact, any party to a claim—SAIF, employers, association members, medical providers, managed care organizations, and workers—all should write with the understanding that other people besides the recipient will view the email. Oregon law states that such documents must be released to the injured worker or attorney upon request.
Avoid this scenario
The casual tone that we normally strike when writing email must be reconsidered when communicating with SAIF about a claim. Keep in mind the following guidelines when writing an email:
- Keep it simple.
- Keep it factual.
- Resist offering unsubstantiated opinions.
- Be professional in tone.
If you want to convey sensitive information that may be subject to misinterpretation, pick up the phone and call us at 800.285.8525.
The claims adjuster's written notes about a phone conversation are considered "work product" and therefore are generally not subject to disclosure in a workers' compensation hearing.
A word about social media
Even though it is not typical for SAIF to receive written electronic communication other than email or faxed information, social media communication, because of its rising popularity, must also be considered. Any written communication, such as text messages, instant messages, Tweets, and Facebook emails, if they are between a SAIF representative and someone who is party to a claim, could potentially be subject to other written record retention requirements.
If you have questions about what kind of communication is appropriate, call your claims adjuster or Claims Director Lisa Wilch at 800.285.8525, ext. 3520.