Dealing with an insurance company after filing a long-term disability (LTD) claim can be frustrating and stressful, especially if your benefits are denied or terminated. It can be even more challenging if you have been placed under surveillance.
When you have coverage under a health insurance policy, you have a reasonable expectation that you will receive benefits if you are injured or become ill. But let's face it, insurance providers are not in business of rubber-stamping every policyholder's claim. Rather, you can expect any LTD claim you make to be scrutinized.
Do you meet the eligibility criteria for disability benefits as outlined in your insurance policy? If you believe that you do, it is up to you to provide the required evidence to support your claim. That typically includes medical reports and doctors' clinical records. Other paperwork, such as proof of income, may also need to be submitted.
Your insurer's next step after receiving your claim will likely be an investigation to determine whether you are eligible for benefits. That could include an interview and the verification of medical documentation.
But what happens if the insurance company questions either the veracity of your claim or the extent to which your injury or condition actually satisfies the disability criteria that would entitle you to benefits? If insurers have concerns or suspicions about a claim, they could decide to investigate a policyholder by retaining the services of an investigation firm (or by using their own in-house investigators). This happens more often than most people realize.
Surveillance can be used in cases involving physical disability or mental health claims. For claimants who know that their actions are being observed, the experience can be extremely stressful. Some people report feeling like they are being treated like 'criminals' even though they have done no wrong.
If your claim has been denied or terminated or you feel your rights are being infringed by constant surveillance, you should consider seeking legal advice. The experienced and knowledgeable team of Toronto long term disability lawyers at Gluckstein Lawyers can advocate for you to ensure transparency in your interactions with your insurance provider.
Investigators Have Limits.
Surveillance of an LTD claimant can come in different forms, and it is legally permitted as long as investigators don't cross certain lines. These probes may involve monitoring various aspects of your daily routine to determine the nature and level of your activity, and at least outwardly the degree of fitness observed. Undercover investigators will typically record your interactions and physical movements by filming them and reporting back to the insurer with the footage and narrative reports. They may also seek to obtain written statements from neighbours and others who might be familiar with your activities.
While private investigators are permitted to take photos and video of you in public spaces, they are not permitted to trespass on private property, enter your home, peer inside or take footage of you inside your dwelling.
Investigators cannot legally pass themselves off as law enforcement agents, record your conversation without consent, tamper with your mail, or install tracking devices. They are not allowed to harass you.
Taking photos and video, or obtaining statements from others, is not the only weapon in an investigator's arsenal, however. Social media mining is a common tactic used by insurers to attempt to challenge a claim. While a photo or post on Facebook or Instagram will generally not provide a complete picture of a person's functionality, insurance companies may still be able to build a case against you if there is an abundance of social media postings. This is especially the case where the postings show a level of function or activity that appears to be inconsistent with the claimant's statements to his or her insurer or the medical evidence submitted in support of the claim.
If you have filed an LTD claim, it is in your best interest to keep your social media accounts private. Do not post anything that might be damaging to your claim. Even posts that you believe may be insignificant can have consequences. The best advice to an LTD claimant in the context of investigations and surveillance, is simply to refrain from posting to social media at all during the pendency of the claim. These concerns did not arise prior to the age of social media. That has now changed to the point where one's social media activity can unwittingly undermine one's LTD claim, even if the postings are misinterpreted or taken out of context.
Investigators can also conduct data surveillance, which can include simple things such as a Google check of your name or digging into court databases for potentially incriminating evidence. It is important to note that investigators can only legally access what is available to the public at large.
Surveillance Doesn't Necessarily Tell the Entire Story.
Surveillance can be pursued by an insurer when there are doubts about a long-term disability claim, and could begin when a claim is submitted or when the insurer is looking to terminate benefits.
However, photos or videos don't always tell the full story, especially if they were taken in a short window of time. Moreover, people on LTD can and do have good days leading to a greater level of activity, followed by bad days when they may "pay the price" for whatever was captured on the 'good-day'. Also, just because a claimant with a back injury can rake leaves or garden for an hour does not mean that he or she can perform their work duties over a typical workday, especially if their work involves higher-level physical or cognitive demands on a sustained or repetitive basis.
This scenario was illustrated in the Ontario Superior Court of Justice decision in Fernandes v. Penncorp. In that case, an insurer denied an injured bricklayer's claim after conducting more than 140 hours of video surveillance during a 19-day period.
The claimant was seen doing manual work. However, the Court ruled that the man was "never observed working at anything like the heavy demands of bricklaying".
"[The claimant] 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," the Court noted.
"[He] 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 claimant was awarded substantial contractual, punitive and aggravated damages.
LTD Advice You Can Trust.
It is natural to expect that insurers will scrutinize claims and look for reasons to deny a long-term disability claim or terminate benefits. As a claimant, you may become the subject of surveillance as your insurer attempts to gather evidence as a means of 'testing' your claim. However, you do have the right to challenge surveillance findings if you believe your disability status has been misinterpreted or otherwise characterized unfairly. And Gluckstein Lawyers is here to help.
We understand disability insurance laws and how to litigate meritorious LTD claims. We have access to experts in the field, and we can position your case to ensure the best possible outcome. Our long term disability lawyers are located in Toronto, Ottawa, Niagara and Barrie to serve clients across Ontario. Contact our nearest office to set up your free consultation.