Am I Being Followed? The Use and Misuse of Surveillance by Long Term Disability Insurers
In the realm of Long-Term Disability (LTD) claims, the use of surveillance by insurers has become a common and controversial practice. In this Insights entry, we delve into the intricate world of surveillance in LTD claims and litigation.
Types of Surveillance:
Surveillance is a tactic employed by insurers to gather evidence on claimants, aiming to assess the validity of disability claims. This may involve physical surveillance and/or online monitoring, often with the use of third-party private investigators.
Online surveillance can take many forms given the wide-spread use and accessibility of social media platforms and websites. Facebook, Instagram, Tik-tok and general google searches are some of the easily accessible and low-cost forms of surveillance that an insurance claim adjuster will utilize without any notice to the claimant. These searches are almost always done without any knowledge or notice to a claimant. The conclusions that the insurers derives from the online searches are recorded in the claimants disability claims file, and it’s rare for an insurer to ask questions or seek clarifications from the claimant, as it’s advantageous to for them to keep this information hidden. As one might expect, inaccurate or incomplete assumptions are commonplace when utilizing surveillance in this manner.
Private Investigators are routinely employed by insurers seeking a heightened level of scrutiny of clients with pending or active claims. The use of third-party private investigators is not just reserved during lawsuits, but is also utilized during the claim process as a means to view the activity and impairment level being claimed by an insured. It’s no coincidence that surveillance is often used on claims which have been approved, or for which the insurance company lacks the medical evidence to deny or terminate an ongoing claim. Surveillance, rather cynically, may even be utilized as a method to try and deny a pending or ongoing claim – whether the insurer has a concern about a the veracity of the claim or not. The insurance company may be simply fishing for information to use against you.
Live in-person surveillance will most typically extend for 2-4 days periods, 6-10 hours each day. A report is prepared by the private investigator summarizing the observations during the surveillance, often accompanied with selected still images. While the full-length video of the surveillance is provided to the insurer it is almost never viewed in full. Instead, the insurance company will rely exclusively on the content of the report and the descriptions provided by the private investigation company that prepared the report. The companies that prepare the report have no medical expertise or even insight into the disability claim and the description of the events of the video are often overstated or taken completely out of context considering the extent of video or time surveillance was conducted.
The cost of such surveillance activities are in the thousands of dollars per day. It is not uncommon to see long term disability claims files with surveillance activities running costs into the tens of thousands of dollars. In most cases, the surveillance is never disclosed to the insured during the claim, nor the conclusions it reached. During a lawsuit we seek to the disclosure of any surveillance within the claims file and can assess the veracity of the conclusions the insurer reached and whether they have acted consistent with their duty of good faith.
The Impact on Claimants:
Surveillance can have profound effects on claimants. The feeling of being watched, coupled with the stress of proving the legitimacy of a disability, can significantly impact one’s mental and emotional well-being. It raises questions of privacy and fairness in the claims process. Being watched is highly invasive and unsettling, and when an individual is not informed they are being observed it can often be downright terrifying to encounter a complete stranger observing and recording your every move.
Aggressive claims handlers who draw wild conclusions from simple or necessary acts of daily living cause further harms to claimants already struggling with a disability. This may cause an individual to have self doubt, shame or to retreat even further into isolation, only exacerbating their medical condition or wellbeing.
Legal Nuances of Surveillance:
The use of surveillance in LTD claims brings forth many nuanced legal considerations. While insurers have the right to investigate claims, the methods employed must adhere to legal and ethical standards. This includes respecting privacy laws and ensuring the obtained evidence is relevant to the claim.
Strategies for Claimants:
Navigating surveillance concerns on an LTD claim or lawsuit requires a strategic approach from an experienced legal counsel. Claimants should be aware that surveillance is a possibility and conduct themselves transparently. It is essential to communicate openly with healthcare providers about limitations and maintain consistency in the information provided.
Maintaining Open Communication:
Open communication between claimants, legal representatives, and healthcare providers is crucial. By being proactive about potential surveillance and addressing it head-on, claimants can mitigate its impact and build a strong case for the legitimacy of their disability.
The Role of Legal Representation:
Engaging the services of an experienced LTD lawyer becomes pivotal when facing surveillance challenges. Lawyers can assess the legality of the surveillance methods used, challenge the admissibility of evidence, the conclusions (false or otherwise) derived by the insurer, and advocate on behalf of the claimant to ensure a fair and just resolution.
Conclusion:
Surveillance in LTD claims introduces a layer of complexity to an already challenging process. Claimants need to be vigilant, aware of their rights, and proactive in addressing potential surveillance evidence. Legal representation becomes an invaluable asset, offering guidance, advocacy, and protection against the misuse of surveillance evidence.
