Insurance companies are watching. Do you know what to do?

By Tony Poland, LegalMatters Staff • That feeling of being watched after filing a short or long-term disability insurance claim might not be paranoia, says disability lawyer Leanne Goldstein.

It’s no secret that insurance companies use surveillance in benefit disputes but claimants may not know how far some investigators will go, she says.

“There are certain segments of the population who realize the insurance company might do surveillance but I don’t think that they are aware how extensive it can be, especially on social media sites,” says Goldstein, founder and senior lawyer at Leanne Goldstein Law Professional Corporation. “Certainly, there are some people who make fraudulent claims. But the problem is those who make legitimate claims can be lumped together with them.

“As long as you are being honest and consistent you should not be concerned about surveillance. You should be living your life in accordance with the recommendations of your medical practitioners and in accordance with your restrictions and limitations. You should not  intentionally change the way you do things, but just be aware that surveillance is a possibility so you are not taken by surprise.”

She says while legitimate claimants should not be concerned, they should still be careful.

“Whether surveillance can be used successfully in determining entitlement to benefits is dependent on what investigators actually see and how it can be interpreted,” Goldstein tells LegalMattersCanada.ca.

Investigations can take on many forms

She says investigations can take on many forms, from background checks to video surveillance. But claimants may not be aware their online activity could come under scrutiny as well, Goldstein warns.

“Many people do not realize that their social media is something that can be monitored by the insurance company,” she says. “Posting on social media has become a societal norm and people fail to consider how what they say will be perceived by the insurance company. Innocent comments may be completely misconstrued by the insurance company. I caution clients to be mindful of what they post on social media so they are not inadvertently providing their insurers with potential ammunition. Even though their comments on social media may seem innocuous, they could be taken out of context.

“Sometimes even the most honest people are placed in very difficult situations,” Goldstein adds. “Then it becomes our job as lawyers to properly contextualize that information.”

She says, “Simply posting that you had a good day and feel better could be turned against you in a disability claims process where an insurer may be seeking a rationale to deny your claim. Information insurers find on social media posts may also lead to further internet searches. For instance, they might see that someone is a marathon runner, so they try to look up their stats to see if they have been involved in any recent races.” 

Goldstein explains investigations may take place at two different stages; when the claim is being adjudicated and when it is being litigated. 

Background check could begin investigation

During the adjudication process, particularly in claims made under individual as opposed to group policies, the probe might commence with a background check.

“This may be a precursor to video surveillance or it may be done as the claims adjudication begins,” says Goldstein. “I find those particular background searches to be very invasive. I don’t feel that should be allowed.

“The initiation of a claim for disability benefits should not open the door to an insurer conducting background checks on claimants which could include searching vehicle and property databases, seeking information on financial holdings and conducting credit searches,” she adds

Goldstein says during the adjudication process, insurers will sometimes send someone out to meet with and speak to the claimant in “an information-gathering exercise.” 

“The information conveyed to the claimant is that the person wants to talk to you to see how the insurance company can assist you. But often it’s a covert form of investigation,” she says. “These people are supposed to be there to help the claimant understand their situation but they may be trained investigators. It’s actually surveillance without the person realizing it.” 

Video surveillance is a common tool used by insurers during the adjudication and litigation process, says Goldstein.

“That could be a few days where they’re following the individual and they might take photos or videos to use at a later point,” she says. 

Investigators can’t take footage inside the home

Goldstein says investigators are not supposed to enter a claimant’s home or take footage of them inside their home. They are also not allowed to put a GPS tracker on a person’s vehicle or record their telephone conversations.

“What they can do is observe you when you are outside your home. If you’re in the public domain nothing is preventing them from following you. For example, if you’re doing grocery shopping, yard work or you are at the gym doing exercises,” she says. “They can monitor you from morning to night until they capture whatever footage they need.”

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Goldstein says insurers will sometimes send someone out to meet with and speak to the claimant in “an information-gathering exercise.” ¶

Goldstein says in the adjudication process, video surveillance often occurs when there is a change of definition of disability under the insurance policy. In most group insurance policies, the test for disability is initially whether a person can do their occupation in the two years after the claim is filed. Following those two years, the test changes to whether a person can do any occupation based on their education, training and experience, she says.

Goldstein states that the specific wording of the policy may differ from policy to policy but conceptually the test change may be a trigger for surveillance as it is not uncommon for claims to be terminated at or near the change of definition. 

Insurers seek opportunistic moments for surveillance

She explains that insurers will often seek opportunistic moments to conduct surveillance. Claimants might be sent by the insurer to a medical specialist for an assessment as part of the adjudication process. Given that the insurer is aware of their whereabouts, they may engage an investigator to record them leaving the doctor’s office. 

“If the claimant is complaining about severe back pain to the medical assessor and then leaves the doctor’s office to play a high-intensity basketball game, that could result in a termination of benefits based on inconsistencies and credibility concerns,” Goldstein says.

She says the problem with video surveillance is often what it doesn’t show.

“It depends on the nature of the claimant’s medical condition and how it interrelates with the observed activity,” Goldstein says. “What the courts have said is that even if the insurer has surveillance footage, it’s not necessarily indicative of that person’s functional ability. Everything is dependent on the specifics of the claim.” 

She points to Fernandes v. Penncorp, 2013,  a case where an injured bricklayer was awarded punitive and aggravated damages against an insurance company that denied his claim after conducting more than 140 hours of video surveillance over 19 days.

Although the man was seen doing manual work, the court found “he is never observed working at anything like the heavy demands of bricklaying. He explained that he was in pain while he was doing this work. He was in pain at night. He took extra painkillers. He said ‘I pay the price’ and ‘I suffer afterwards.’ He said that he had two or three days of good days followed by four or five days of bad days.” 

Evidence must be scrutinized and evaluated

Goldstein says the case is a reminder that video evidence “must be properly and very carefully scrutinized and evaluated in order to determine whether or not it can be relied on.”

“You might have moments when you are feeling better and might do something, but then pay for it afterward,” she says, “You might have a spurt of energy or a short window where the pain has diminished and you engage in an activity that may have a lingering effect later. But the insurance companies are not filming you lying in your bed for three days after you tried to do some yard work.” 

Goldstein says that the evidentiary utility of surveillance for an insurer is relative. 

“If there’s surveillance showing somebody doing activities commensurate to what their workday might look like, such as being out there for the entire day doing all sorts of cognitive and physical tasks with no difficulty, that might be more compelling than 15 minutes showing someone picking up leaves,” she says.

Goldstein says “the most important thing about surveillance is not to be worried about it .” “Particularly, if you’re an honest claimant. The most important thing to do, even though surveillance can be misconstrued, is to always be honest and truthful about your restrictions and limits,” she says. “I can’t guarantee that insurance companies won’t do surveillance, that they won’t try to use it against you. But as long as you’re being honest, we have ways to combat what they are relying on producing as evidence.”