As a long-term disability lawyer, when I first meet with clients who have had their disability benefits denied or terminated, some are surprised to learn that insurance companies may be watching them. Although it may seem strange that an insurer would spend money to follow you, to them, the cost-benefit analysis makes sense. While insurance companies won’t monitor every single claimant, certain injuries are more likely to attract surveillance.
Psychological injuries are mostly invisible, so a private investigator (PI) won’t necessarily gather further evidence through surveillance. Conversely, orthopedic injuries are more obvious in that the person may have a cast or crutches, so it’s clear what their limitations are. When it comes to chronic pain, however, that doesn’t show up objectively on scans or bloodwork. So, insurers must go with what the injured person is reporting about their limitations as well as the medical documentation to support the claim.
I know the thought of being followed or watched sounds intrusive and stressful, but if you’re honest about your injuries and limitations, you can’t get into trouble with surveillance. In fact, surveillance may help your case if what you report to your doctors and what you give as evidence matches what you’re doing.
That said, there are some steps you can take to avoid having your credibility questioned.
Physical surveillance
With physical surveillance, a private investigator watches you for a while and takes photographs and videos to help the insurance company cast doubt on your credibility. They have access to your home address, so that’s typically where they will start their investigation.
If you say you can’t stand for more than 10 minutes because of your chronic pain, but there are hours of video surveillance showing you shopping at the outlet mall and doing strenuous yard work, the insurer can try to discredit you.
It’s important to remember that while a PI can get a good glimpse into your life, they don’t see everything, including the context surrounding certain events. Maybe they saw you shovelling snow on your driveway but what they didn’t see is the following eight hours where you laid in bed with a heating pad and took prescription medication to manage your pain. Our firm has successfully discredited surveillance in these types of cases, but it’s better if you don’t have to explain activities captured in a video or photograph.
It helps to be aware of your surroundings, but you shouldn’t live in fear. These cases can take years to conclude, so constantly looking over your shoulder will make an already stressful situation even worse. Again, as long as you are consistent with what you say you can do — and that matches what people see you doing — you don’t have to worry.
Digital surveillance
In my first meeting with a client, we will discuss their social media and the importance of keeping these accounts private because that’s the first search an insurer will conduct.
Be conscious of who is following or friending you because sometimes an investigator will reach out under a pseudonym. If you accept an invite from someone you don’t know that person now has access to all of your photos, videos and posts.
The thing about social media — especially sites like Facebook and Instagram — is it’s common to display a curated persona of how you want to be perceived. So, for example, you may not want your friends and family members to know what you’re going through and how you’re really feeling, so you put on a happy face online.
You might post throwback pics of when you were on vacation, out at social events or participating in activities like zip-lining. Those photos could be five years old, but the insurance company assumes they were captured last weekend.
Is it legal?
It might feel intrusive, but as long as investigators are following privacy legislation, it essentially comes down to the question: Do you have an expectation of privacy where you are being filmed or photographed? For example, if you are in your backyard but have a chain-link fence where people walking by can see you, then there is a low expectation of privacy.
However, the more questionable cases come when people are in their homes. For example, there was a 2005 case where a woman with a long-term disability claim was filmed, including inside her home, performing activities inconsistent with the symptoms she reported to her doctor. The woman claimed damages for the breach of her privacy. But the judge found that while her expectation of privacy may legitimately be higher while in her house, on the night in question the blinds were open and the lights were on.
When it comes to digital surveillance, public social media posts are considered fair game, but case law is inconsistent with private content. So, while you might downplay your issues or disability online, consider if what you’re posting contradicts what you say you can do — even if your accounts are private.
And remember that if you’re telling the truth, surveillance will have no significant impact on your claim. An investigator can follow or lurk all they want, and all your insurance company will see is exactly what you’ve been telling people all along.
If your claim for disability benefits has been denied or terminated and you would like an opinion on your case, call our office to schedule a consultation.