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What is Surveillance?

Surveillance is a common tool insurers use to investigate your long-term disability insurance (LTDI) claim, especially if your insurance company suspects you of exaggerating your disability. Insurance companies may hire one or more private investigators to perform surveillance in an effort to prove that you are not really as disabled as you and your doctor claim. This can be an alarming experience. While it is legal for insurance companies to engage in some form of limited surveillance, it is important for you to know your rights surrounding surveillance and your disability claim.

How is Surveillance Typically Conducted?

Generally, the private investigator will perform an initial background check to learn a bit about you, including your address. Then, they may park outside your residence and wait for you to emerge. When you do so, they will make note of what you do, such as taking out the trash, collecting the mail, or walking your dog. They may also follow you if you leave your residence, making note of any errands you run. They will also pay close attention to your body language, including whether you walked with a limp, appeared to be in pain, or struggled with any task.

Why is Surveillance Conducted?

Surveillance evidence can confirm whether your reported medical conditions, restrictions, and limitations align with your actual daily activities. If surveillance footage shows you engaged in activities that your claimed disability would otherwise prohibit, the insurance company will use that evidence to deny your claim.

For example, if you filed a claim for benefits based on debilitating back pain, but surveillance footage shows you rock climbing, the insurance company will take that as evidence that you are not actually disabled. However, surveillance evidence is rarely that clear cut. More often, insurance companies will consider more innocuous activities to be “evidence” that your medical condition is not debilitating, such as video surveillance showing:

• You sitting comfortably at a restaurant,
• Collecting mail at the mailbox,
• Grocery shopping and loading groceries into/from your car, or
• Lifting or carrying a child, or
• going to a park or the gym.

Where is Surveillance Typically Conducted?.

In general, insurance companies can conduct surveillance anywhere you do not have a reasonable expectation of privacy. This means public locations, such as cafes, gyms, parks, and businesses are all fair game for surveillance.

It is important to know that private investigators may not enter your property without your permission. If a private investigator trespasses on your property, contact the authorities and make a record of the unlawful activity. You are allowed to turn the tables on the investigator and conduct surveillance on them, record their behavior via video and/or audio equipment (e.g. with your smartphone).

However, some claimants forget that social media accounts are also targets for surveillance (see below).

Surveillance and Social Media

Insurance companies are increasingly relying on social media and internet surveillance to uncover evidence to deny claims. If you are present on social medical, you likely share details of your life to connect with friends and family. However, it is important to remember anything shared publicly is also accessible by insurance companies. For example, if you post a picture of yourself holding a child, but also reported to the insurance company that you are unable to lift more than 15 pounds, the insurance company may rely on your post to deny your claim.

Social media can be problematic for disability claimants because you are much more likely to post positive, “able” pictures of yourself (e.g. holding a smiling child or dancing at a party) than you are to post images of difficulty or struggle (e.g. holding an icepack on your back or having trouble sleeping due to pain). This is why you must be particularly cautious about what you post on social media, as it can be a goldmine for a disability insurer trying to make you look like a fraud. If you do participate in social media while waiting for a disability claim to be approved, consider changing your account settings to “private,” so only trusted friends can see your content. Your best bet may be to temporarily close or suspend your accounts, which reduces the likelihood of any photos or stories of you becoming publicly available.

Surveillance Rights for LTDI Claimants

You need not stop living your life just because you have made a disability benefits claim. In fact, courts have ruled that claimants do not need to be “utterly helpless” to be considered disabled, and that the ability to perform some daily activities does not translate into an ability to perform fulltime work.

If you believe you are under surveillance, you are able to continue going about your normal daily activities. As always, it is important to follow your doctor’s restrictions. This is especially true if you are under surveillance because any deviation from those restrictions will be used as evidence against your claim for benefits.

Additionally, you are not obligated to speak to an investigator or to provide the investigator with any information. If the investigator attempts to speak with you, you have the right to decline to do so.

If you are concerned that your insurance company may be conducting surveillance regarding your LTDI claim, contact our firm to discuss your case with one of our experienced attorneys. We would be happy to meet with you.

Jessa Victor

Associate Attorney at Hawks Quindel, S.C.
Jessa Victor is an associate attorney in Hawks Quindel’s Madison office. Her practice area focuses on family law and long term disability insurance claims. She values the importance of a client-focused practice. In addition to keeping clients informed, she is attentive to their input so as to ensure they are not passive observers in their own cases.