* Attorneys Justin Frankel and Jason Newfield head a disability insurance law firm (www.frankelnewfield.com) that: 1) Works with patients before they file long term disability benefit claims to negotiate medical, paperwork, and insurer minefields; and 2) Represents policyholders whose disability claims have been denied or delayed. They represent many claimants across the US with potentially disabling ‘invisible’ illnesses such as fibromyalgia (FM), and chronic fatigue syndrome (ME/CFS).
Surveillance and Investigation Tactics Used by Disability Insurance Companies – The Importance of Knowing What to Expect
The great news is, you are having a good day. You got out of bed and went outside for the first time in weeks. The bad news is, you were having a good day and went outside and walked right into the field of a video camera being used by an investigator working for the disability insurance company.
From the moment that you file a disability claim, information gathering begins, from reviewing medical records and interviewing your neighbors to videotaping your activities. They are gathering evidence in an effort to deny your claim.
Here’s what you need to know about surveillance and investigations of disability claims:
You’re Not Paranoid – They Really Are Watching You
• Video surveillance is cheap and easy to conduct and open to a great deal of abuse.
• Surveillance is more frequently used by insurers in cases where claimants allege disability based on ‘invisible’ conditions like Fibromyalgia and Chronic Fatigue Syndrome (ME/CFS).
• And surveillance is commonly used in high benefit claims, where the insurer is motivated to terminate or deny a potentially expensive claim.
A “Good Morning America” investigative team reported on several cases of claimants whose benefits were cut off after the use of undercover surveillance videos. The investigators staked out one person’s doctor’s office.
Our own office has defended many claimants who were videotaped going to the doctor – and told these trips were proof that they were capable of working at highly physical jobs. Therefore:
• Make note of your activities outside of your home.
• Note the day, date and time of all appointments.
• If you have been advised by your physician to have physical therapy or join a gym and exercise, make sure that your medical records reflect this.
In a published federal court decision, a major insurance company that routinely uses video surveillance acknowledged that surveillance is an aggressive tactic. This was one case where its videotaping would have supported a policyholder’s claim for disability benefits. However, the company instead chose to rely on a doctor’s vague assessment – a mistake on its part, as the findings were unclear and only based on a partial review of the medical records.
The Intrusive ‘Field Visits’
We consider the Field Visit interview to be a cruel and unfair tactic. Patients who are ill and homebound are extremely vulnerable, and field visits take advantage of their weakness.
• An unannounced and seemingly friendly visitor knocks on your door. You are not expecting a visitor, so you are off guard. You are not well, making you highly vulnerable.
• The seemingly friendly conversation, which takes hours and is exhausting, becomes confrontational when the interviewer suddenly opens up a monitor to show surveillance video of you going to the doctor’s office, walking outside of your home – and demands to know whether or not your visits to the doctor would be the same level of difficulty as ‘going to work’.
We recommend that our clients call us immediately if someone knocks at their door and wants to interview them without notice.
• Tell the person that you are not well enough for an interview, get a name and a phone number, and tell them you will call them to make an appointment.
• Have another person present when you meet with them. Depending on the language of your contract, you may be required to have such an interview, but you have the right to set the time and have a family member or friend present.
• You may also want to record the interview, with an audio device or video camera of your own, to make sure that the information is not distorted.
Investigation in General
• A disability insurance claim immediately opens the possibility of surveillance and investigation.
• If your claim involves being unable to travel to get to work, you may be videotaped if an investigator sees you driving or traveling.
• If you call the insurance company from a phone not located in your home, Caller ID records can be used to prove that you are able to travel.
• Think like an adversary. BE CYNICAL and on the defense.
Your neighbors may be interviewed, family members may be called with seemingly innocent questions.
Claimants must be mindful of their activities while in the claims process and while benefits are being paid.
In summary, disability insurance companies will use investigation techniques that present no-win situations, so it is important to know what to expect.
Being prepared for the investigation that is likely to follow filing a claim for a potentially disabling but ‘invisible’ condition like Chronic Fatigue Syndrome (ME/CFS) or Fibromyalgia can be helpful.
And if your claim has been denied based on the information gathered through an investigation, do not accept that the denial without a fight.
– Justin Frankel and Jason Newfield, Attorneys at Law, May 2011
[For insights regarding an earlier stage in the claims process, see Frankel & Newfield’s recent article “Avoiding the Disability Claim ‘Brush-Off’ – What You Need to Know.”]
Note: This article is published with the intent to provide general information and is not intended, nor should it be used, as a substitute for legal advice rendered by a professional in the context of a specific situation.