MK Disability Lawyers' Statement on COVID-19 - Read Post
 Posted by  Courtney Mulqueen , Partner,  MK Disability Lawyers
Posted by Courtney Mulqueen , Partner, MK Disability Lawyers

A while back we wrote an article about the use of surveillance by insurance companies in Long-Term Disability (LTD) claims (“Surveillance and LTD Claims: Are They Watching Me and Why?”). The article provided disabled individuals with useful information to help them understand how surveillance may be used in their LTD claims and lawsuits. Since then, one of the most frequently asked questions we have had from clients and others about surveillance has been whether insurance companies use surveillance in Mental Health Long-term Disability (LTD) insurance claims.

According to a recent CBC News article, it is estimated that one in five Canadians will experience a mental illness in their lives. We estimate that at least 70% of our clients are disabled due solely to mental health related illnesses. However, nearly all of our clients have some degree of depression, anxiety or panic, either as a result of their physical illness or as a result of not being able to work and earn an income. Often their mental health is further aggravated by how their insurance company has managed their LTD claim–this includes the insurer’s use of surveillance in assessing their claim.

We often hear from our clients that they feel re-victimized by the insurance company responsible for assessing and paying their LTD benefits. While already suffering from mental illness, the ongoing management of their disability claim can aggravate their already tenuous mental health. For example, the constant information requests and invasive questions that they and their doctors are required to answer, lead many of our clients to feel as though the insurance company does not believe that they are ill and cannot work. This feeling leads to a sense of uncertainty, fear and anxiety that their benefits could be cut-off at any time.

Many individuals may also feel pressured to return to work before they are medically able in order to avoid having to deal with the stress and anxiety of continuing to deal with the insurance company. Unfortunately, returning to work before medically able often leads to a deterioration in their health and strains their relationship with their employer.

These aggravating factors are further compounded by the mere prospect of surveillance being conducted on them by the insurance company. We understand that surveillance, particularly in LTD cases where mental illness is the primary disabling condition, is a serious and legitimate concern for individuals who are receiving LTD benefits or who are in a lawsuit with their disability benefit insurer.

The large proportion of our disabled clients suffering with mental illness disabilities is consistent with statistics provided by the Mental Health Commission of Canada, which estimates that 30% of disability claims are due to mental illness. The Canadian Life and Health Insurance Associate estimates the percentage to be as high as 50% of all disability claims.

The reality is that insurers are now facing the significant cost of paying LTD benefits for vast numbers of mental health-related disability claims. Due to the significant cost of these claims, insurance companies are motivated to look beyond medical records and individual’s self-reported symptoms, when assessing these claims. In-person (video recording and photographing individuals while in public) and online surveillance are other, much more invasive and subversive means by which insurance companies are now choosing to verify these types of LTD claims.

In our practice, we have seen many examples of surveillance being used by insurers to deny or terminate an individual’s mental health-related (LTD) disability claim. One such example was highlighted in the recent CBC News article, “A Montrealer’s Fight to get Insurer to Recognize his Depression”. The article describes writer Samuel Archibald’s struggle with his disability insurer with respect to the online surveillance and the denial of his disability claim. When his disability claim was denied, it was through his doctor that he found out that Desjardins (his disability insurer) was tracking his activity on social media. He had posted photos of him with his children and running and looking, generally, happy. Although his activities were consistent with his doctor’s recommendations to treat his depression, the insurer had determined that his activities (as portrayed on social media) were inconsistent with what would be expected of someone with a disabling mental health condition.

In our practice, we have heard the argument from insurers that if our client is out and about, as seen on surveillance or active on social media, then he/she is able to function in the workplace and earn a gainful income. There are a multitude of reasons why this is simply not true and easily disputed in a vast majority of these mental illness disability (LTD) benefit cases, including:

  • Socializing and exercise is recommended for individuals with depression/anxiety and other mental illness and surveillance depicting these activities actually serves as evidence that the individual is following doctors’ orders;

  • Individuals with mental illness (as with other illnesses) have good days and bad days and their activity on one day or during the course of one week or even during one month, is not persuasive evidence that the individual is able to work on a consistent basis, earning a gainful income;

  • Most activities observed on surveillance do not demonstrate the individual’s functional (including their cognitive) ability to perform the duties of their “own occupation” or “any occupation”, as defined as the test for total disability under their insurance policy;

  • Surveillance of an individual smiling or laughing in public or on social media, is not evidence of a person’s cognitive functioning or ability to work (or retrain) or even evidence of the severity of their mental health condition; and

  • More often than not, if the individual’s treating doctor or specialist (psychiatrist, psychologist or therapist), were provided the opportunity to view and comment on the surveillance, they would find that it was not inconsistent with their patient’s cognitive limitations and restrictions and their inability.

We have found that surveillance is generally, not a useful tool to insurance companies in denying LTD claims or defending LTD lawsuits (unless of course, the person is working). It is best for disabled individuals to follow doctors’ recommendations and go about their normal activities and let us worry about surveillance if their LTD claim is denied or if surveillance becomes an issue in their lawsuit. We appreciate that in most cases, this will be easier said than done for individuals suffering with mental illness.

Therefore, our concern is always that the prospect of surveillance will cause such anxiety that an individual will not leave their home or interact with the world online which could, in turn, aggravate and delay their recovery, assuming their doctor is recommending they get out and be active or stay in touch with the world by social media. However, it is advisable for disabled individuals to simply try to be mindful of how insurers may view their activity in the world and their social media posts when posting photos or videos online, and to remember to be consistent in reporting their activities to their doctors and their insurers to ensure that their credibility does not come under attack due to surveillance.

For more information about surveillance in disability insurance claims, we encourage you to read our previous article, “Surveillance and LTD Claims: Are They Watching Me and Why?”.

Please also look out for our upcoming post related to “What Privacy Laws are there to Protect me in my LTD Claim?”.

If you wish to discuss concerns regarding a Mental Illness LTD claim, surveillance or any Long-Term Disability issues with a lawyer, together the lawyers at MK Disability Lawyers have over 20 years experience (combined) dealing with long-term disability (LTD) cases, many of which have 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.