Don’t Smile when Depressed and Dancing with Strippers

By: Omar Ha-Redeye · November 22, 2009 · Filed Under Evidence, Health Law, Labour & Employment Law · 3 Comments

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.

Cross-posted from Slaw

Post tags: # Beck Depression Inventory, bipolar, chronic pain, depression, disability, facebook, Hamilton Rating Scale for Depression, IBM, Manulife, Montgomery-Åsberg Depression Rating Scale, Nathalie Blanchard, Thomas Lavin, Zung Self-Rating Depression Scale

Employment Lawsuits Will Rise in Recession

By: Ryan MacIsaac · January 29, 2009 · Filed Under Class Action, Labour & Employment Law · Add Comment

In the current economic climate, companies big and small are feeling the stress of financial insecurity and reduced profits. As a result, more and more Canadians are finding themselves unemployed. This will likely lead to an increase in employment-related lawsuits.

To quote a recent article by CFO Publishing, “layoffs mean lawsuits.” In the United States, employment litigation has risen correspondingly to the decline of the country’s economic health.

In a case of being fired without just cause, a former employee can make a claim of wrongful dismissal; thus age-discrimination lawsuits and so forth have been on the rise recently.

But a business may collapse suddenly, still owing its employees wages and/or benefits. Take for example the case of a Saskatoon company that built trailers for the oilpatch. A slowdown in the tar sands led to its laying off all 270 employees, many of whom are owed outstanding wages. A group of the former employees is now considering a class-action suit.

The number of employment-related class-action suits has been on the rise, according to Toronto-based employment lawyer Daniel Lublin. This has led to what he calls “workplace law’s newest, and biggest, phenomenon: lawyers specializing in class action lawsuits.”

As companies like IBM and Air Canada let employees go, they will have to be careful to avoid class-action suits – especially since employees are becoming informed and asserting their rights.

Finally, even without firing employees, a company can become the target of a class-action suit. In the current case of CIBC, the bank is fighting employee claims of unpaid overtime. Since the ramifications of this case “could spill over into workrooms across the nation,” companies that scrimp and save in the face of economic uncertaintly may find themselves in the courtroom if they choose to do so at the expense of employee entitlements.

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UPDATE, 26 Feb 2009: Today as part of a series looking at the recession’s effects on people in Toronto, the Globe & Mail published an article about booming business at one employment law firm. The article references this survey of litigation trends, in which “Labour/employment” is by far the top type of legal dispute currently worrying Canadian firms.