Surveillance an ineffective way to disprove a disability claim

By Tony Poland, LegalMatters Staff • York Region disability insurance lawyer Courtney Mulqueen says she has noticed an increase in the use of surveillance in an effort to disprove teachers’ disability claims even though the practice has “no real probative value.”

“It is occurring on almost every teacher file I am handling. Suddenly there is surveillance on them. That is really unusual,” says Mulqueen, principal lawyer and CEO, Mulqueen Disability Law Professional Corporation. “We normally do not see teachers being placed under surveillance in litigation.”

She calls this monitoring “a total waste of the insurer’s resources.”

“It is not going to get them very far,” Mulqueen tells LegalMattersCanada.ca. “Surveillance can be quite expensive. What makes it worse is the money to pay for it is likely coming from the teachers’ own trust since teachers in Ontario pay 100 per cent of their disability insurance premiums and some have been paying into these plans for decades.”

Investigation begins when claim is filed

She says insurance companies begin an investigation when a claim is filed. That might include the insurer requesting medical records and asking the claimant about their daily activities, Mulqueen explains.

Typically, surveillance is conducted only when the insurer is looking for reasons to terminate a claim or when there is litigation over the denial or termination of benefits, she says.

Surveillance is not only used in cases of physical disability but also when a mental health claim is being litigated, says Mulqueen.

“That’s a concern for me. You have people with serious mental illness and once they find out that there may be surveillance on them, that can make them more anxious,” she says. “Being under surveillance could unnecessarily aggravate their condition and set them back in their recovery.” 

Mulqueen says surveillance is rarely effective at defending the denial or termination of a disability claim.

‘It is not always a true reflection of the situation’

“Most disabled claimants have good days and bad. Unless you’re doing surveillance for multiple consecutive days over the course of many weeks you are not getting a complete picture. Even then, it is not always a true reflection of the situation,” she says.

Just because someone is able to perform certain activities in public does not mean they are able to perform their work duties, Mulqueen says.

“The insurer must also take into account if the person can work on a consistent basis,” she says. “Just because a teacher is able to do something one day doesn’t necessarily mean that they are ready to return to teaching. The ability to go grocery shopping does not mean that they have the physical and cognitive ability to teach a Kindergarten class all day.”

Given that surveillance evidence carries little weight, Mulqueen says she wonders why insurers bother with it.

“They seem to be focussed more on attacking teachers’ credibility when they should be taking a good faith approach to these disability claims, after all teachers are paying for this insurance,” she says. “My teacher clients want nothing more than to be well and to be back in the classroom teaching their kids, so instead of putting them under surveillance in an effort to discredit them, give them the respect they deserve, assess the medical evidence and approve their claims if it is clear that they are not able to work.

Feel they are guilty of a wrongdoing

“As soon as claimants hear about surveillance, they feel very much like they are being treated as if they are guilty of doing something wrong and they have to prove their innocence.” 

Mulqueen says courts “rarely look fondly on surveillance,” using Fernandes v. Penncorp  as an example.  Ontario Superior court found against an insurance company that denied an injured bricklayer’s claim after conducting more than 140 hours of video surveillance over 19 days.

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During that period, Avelino Fernandes was observed doing manual work but the court ruled he was “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,” writes Justice P.B. Hambly. “Avelino was observed in the surveillance on August 3, 2005 to lift a wheelbarrow and a wooden skid in and out of a truck on a single occasion. He was also observed to shovel some dirt. This does not remotely establish that he was able to do the heavy continuous labour for long hours for 6 to 7 days per week that he was doing in his bricklaying occupation, before he was injured.”

The man was awarded contractual, punitive and aggravated damages totalling more than $500,000.

Teachers report suffering from depression

Mulqueen says because of the pandemic, many teachers have contacted her firm saying they are suffering from depression, anxiety and fatigue, so they need assistance with their disability claims.

There are also those suffering from long-haul COVID which, like mental health and chronic fatigue issues, can be difficult to diagnose and to prove they are not able to work, she says.

“These are conditions where test results are not necessarily available,” Mulqueen says. “Determining if someone is functionally able to work is very subjective and based on what the claimants and their doctors report. I doubt you can learn much about a person’s ability to teach from surveillance in those cases.”

She says there are functional requirements to teaching. 

“You have to be able to be on your feet for a certain number of hours per day. You have to be able to communicate and focus and supervise children, it’s a lot of multi-tasking and can be extremely stressful,” says Mulqueen. “Just because they were seen driving for 30 minutes or they went to a neighbour’s house for a few hours doesn’t mean that they have the ability to teach.

‘Surveillance is of very little value’

“The stress caused even by the possibility of surveillance far outweighs any sort of probative value of it, particularly where the case law stands right now,” she adds. “In my view, unless the person is actually working somewhere or not being truthful about their reported functioning to the insurer or their doctors, surveillance is of very little value.”

Teachers don’t choose to be unwell or want to have to sue to get the benefits they need and always believedwould be available to them if they were too unwell to work, Mulqueen says, adding insurance fraud is rare.

“In my 22 years of practice on both defence and plaintiff sides, I have only come across two truly fraudulent claims and I have seen thousands of cases,” she says.

Mulqueen says she tells clients that private investigators are not permitted to enter a person’s home, peer inside or take footage of them inside their house. 

And while surveillance can be a source of stress, she says she advises them not to worry about it. 

“As long as there is consistency in terms of what they’re reporting to the insurer and what they’re reporting to their doctors, they should really not think about it,” Mulqueen says. “Just get on with their normal life and focus on their treatment and recovery.”