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 Posted by  Courtney Mulqueen , Partner,  MK Disability Lawyers
Posted by Courtney Mulqueen , Partner, MK Disability Lawyers

Often clients come to us asking whether they should be concerned about surveillance.  Our response is NO.  If you are not working and your activity level is consistent with your medical records and with what you have described it to be to your insurance company, then you should not be the least concerned with surveillance.  

Of course, saying not to worry about surveillance is easier said than done.  Even the slightest possibility of a private investigator watching you and following you about town, is enough to insight a healthy degree of paranoia in anyone, let alone someone who is already suffering from the physical and psychological symptoms of disability.  

The following are answers to some of the most commonly asked questions regarding surveillance.  The objective here is not to increase paranoia or anxiety, but rather to arm you with the information you need in order to go about your daily activities without worrying (too much) about surveillance.

What is surveillance?

Surveillance is a “tool” used by insurance companies in the assessment of LTD claims and as evidence in LTD lawsuits.  At least, that is what the insurance companies will tell you.  However, to claimants and plaintiff lawyers, the purpose of surveillance appears more often to be a means of attacking a claimant’s credibility and fishing for evidence to terminate LTD benefits or defend themselves in a lawsuit.

Typically, an insurance company will hire a private investigator to surveille/watch a claimant for a few days in a row.  They may do this a couple of times over the course of a few months.  Sometimes they do much more and sometimes they do not go to the expense of ordering any surveillance at all.

The private investigator may take photos and video of you while you are visible from public property.  They are not permitted to look into your windows or knock on your door or look over your fence into your backyard or to enter your home.  

Practically speaking, what this means is that when you open your front door to retrieve your mail or your newspaper, you might be subject to surveillance.  Similarly, if you are gardening, socializing with a neighbour on your driveway, if you go out to the local Tim Hortons or to the grocery or hardware store or to a doctor’s appointment, the investigator is permitted to follow you and record your every movement and activity.  

Surveillance may also take the form of internet/online surveillance.  They may search your activity on Facebook, Twitter, LinkedIn, blogs and wherever else they might find as evidence of your online activity.  From these sources they may be able to find evidence of your social or employment activities or simply, your functionality.  For example, they may see that you have been travelling or participating in athletic competitions or you have your own business or you are posting information about your symptoms and how you are feeling.  They can then use this information in the assessment of your claim or in defence of a lawsuit.

Why do insurance companies conduct surveillance?

The reason for surveillance is simple.  The insurance company will say that it is an independent way to verify the information you and and your doctors are providing regarding your functionality.  Remember: Your level of functioning is what is at issue.  They want to know if you are truly unable to perform the duties of your “own occupation” or “any occupation” (Please see our earlier blog post for more information about the Change of Definition for an explanation of the terms “own occupation” and “any occupation”.) They feel that if they are able to capture your activity level “in the wild” so to speak, they will have a truer representation of your functionality.

Most often surveillance is used where there is some doubt about the claimant’s credibility. Perhaps the information you provided to your doctor (or whatever your doctor ultimately wrote down) is inconsistent with what you have told the insurance company.  Perhaps your reported symptoms and level of functioning is inconsistent with what would be expected from your medical condition.  Perhaps they have some reason to think you might be working.  These are all “red flags” that trigger a reason to order surveillance.

Surveillance tends to be more effective in cases where the claimant has physical conditions that prevent “observable” functional limitations and restrictions (such as bending, twisting, lifting, carrying, sitting, standing, etc.).  However, it can also be used in cases of psychological impairment, where the claimant is claiming not to be able to leave the house, socialize, be in crowds, drive, etc.

How could surveillance affect my LTD claim or my LTD lawsuit?

That depends. Since surveillance is used for the purposes of determining functionality and credibility, the insurance company may use the surveillance to say that your are capable of working or that you have not been truthful with them and/or your doctors about your functionality and therefore, your condition is not likely to be as severe as you claim.

Even if you are viewed as being “active” on surveillance, generally speaking surveillance will have little or no persuasive value, unless you are working.  Since surveillance is essentially a snapshot of one or a few days in your life, it is not difficult to argue that the activities observed, must be viewed in the context of your disability.  As with most conditions, you may experience good days and bad days.  On a good day, you may function well for all or part of the day.  You may “pay” for your activity later in the day or for days later.  On a bad day, you might not be observed at all, because you were unable to leave the house due to your symptoms.  Neither good days nor bad days are a true reflection of your overall functioning or evidence of your ability to work.

In litigation (once you start a lawsuit for LTD benefits), the insurance company will also use the surveillance to discredit your evidence on Examination for Discovery.  An Examination for Discovery is a required step in the litigation, in which the parties have a chance to “examine” or ask questions of each other.  The lawyer for the insurance company will ask you questions about your “activities of daily living” or your functional limitations and restrictions.  If they have surveillance (which they must disclose), they will compare what you tell them you are doing or able to do, with what they have observed you doing on the surveillance.  If the two don’t match up, then you may have a problem with your credibility, which could seriously impact your case.

On a positive note, if the surveillance does not show any inconsistencies or if it shows that you are at least as inactive as you and your doctors claim, then surveillance becomes evidence that you are credible and disabled and the insurance company has just wasted a whole lot of money to confirm what you and your doctors have been telling them all along.  This type of surveillance will assist you in continuing to receive LTD benefits or in achieving a good result in your lawsuit.

What do I do if I think I am under surveillance?

Whether you are being paid LTD benefits or you are in a lawsuit fighting for LTD benefits, our suggestions are the same.  Do what you would normally do.  Follow your doctors’ orders.  Do not try anything new or out of the ordinary, that has not been first approved by your doctor.

If your doctor has told you to stay active, that recommendation be in the records provided to the insurance company.  If you are observed out walking the dog or out for a swim at the local pool, those activities would be evidence of you complying with doctor’s recommendations and surveillance would not reflect negatively on your claim.  

If your friend has asked you to help him move or to renovate his basement and your doctor has placed limitations and restrictions on your ability to lift or carry or bend, then you should not be doing those activities without your doctor’s approval. While anyone can appreciate the motivation to resume normal functioning or at least try, it is not only medically unwise to do so, the risk of surveillance is also a realistic deterrent.  

Often a claimant may attempt to carry a box or lift up a crying child or do something out of the ordinary, contrary to their restrictions.  If that activity happens to be observed on surveillance, the insurance company may infer that you are more functional than you claim.  They may see you active one day, but not see the pain you are in the next day or for days after.  

With respect to internet surveillance, any information publicly available and relevant to your functioning is fair game.  If you are posting information about how you are feeling, the insurance company will use that information and compare it to your medical records, in search of inconsistencies and evidence of a higher-than-reported level of functioning.

Sometimes, a claimant may update their LinkedIn profile, which might result in the inference that the claimant is seeking employment, while in fact, the objective was far more benign, such as connecting with old friends or maintaining employment relations, in the event that his/her medical condition improves to the extent that a return to work becomes possible.  

Other times, a claimant might have a small business, such as selling artwork or crafts online.  In such case, the small business has been in existence for a long time prior to the claimant becoming disabled and may earn little or no income and may require little or no effort on the part of the claimant.  It is also common for a claimant to be named as a business partner or member of a business but is not actively participating in the business and not earning an income.  While the results from these types of searches, do complicate a claim/lawsuit, they are often dealt with by way of explanation and supporting evidence in the form of tax returns and other financial documentation to disprove active involvement or earned income from employment.

In summary, with respect to online/internet surveillance, be aware of what you post and what information is publicly available about you, may be used against you in your LTD claim. Conduct an internet browser search of yourself and see what comes up. Alert your lawyer to anything that might suggest that you are working or capable of working and be prepared to explain away those inferences.

In terms of physical surveillance, if you feel that you are being watched; for example, if you see an unknown vehicle parked near your house, you can call police.  While it is not illegal to conduct surveillance, the investigator will know that his cover has been blown and that will likely be the end of that round of surveillance.  Generally, speaking though, the best thing to do is to what you would normally do, what your doctors say you can do, and admit to your activities to the insurance company when asked.  Trust that that will be good enough and try and forget about the possibility of being surveilled.

What if my LTD benefits are terminated because of surveillance?

If you LTD benefits are terminated, it is unlikely that the termination was the result of surveillance evidence, only. The insurance company may say that they do not have sufficient evidence to support disability of such severity to prevent you from performing the duties of your own/any occupation.  They may say that you are not receiving appropriate treatment.  They may say that there is no contraindication to work (meaning work won’t make your condition worse).  They may say that they do not have objective medical evidence to support limitations and restrictions of a disabling medical condition.  There are several reasons why an insurance company will not pay LTD benefits.  In all likelihood, you will not know whether or not surveillance played a role in that decision, until you are well into a lawsuit.  At which time, you will need an experienced and aggressive lawyer to disarm the insurance company of any and all non-persuasive evidence, such as surveillance.

If your LTD benefits are terminated for whatever reason it is critical to act quickly and contact a lawyer to prevent the expiry of any limitation periods and to assist you in the complicated pursuit of the LTD benefits to which you are entitled.  

If you wish to discuss concerns regarding surveillance or any Long-Term Disability issues with a lawyer, together the lawyers at MK Disability Lawyers have over 20 years experience dealing with long-term disability (LTD) cases, many of which involved surveillance.  We would be happy to provide you with a free consultation, during which we can discuss your issues and answer your many questions.  We are here to help.

The preceding is not intended to be legal advice.  This blog is made available for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice.  By using this blog, you understand that there is no solicitor client relationship between you and the blog publisher.  The blog should not be used as a substitute for competent legal advice from a licensed lawyer in your jurisdiction.  If your disability claim has been denied and you require legal advice, contact a lawyer specializing in disability law.

 

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