Surveillance- Who’s Watching You?
Posted on 21. Apr, 2011 by herb in Blog, FAQs
Insurance Companies routinely use surveillance investigators to tail and videotape the activities of claimants. About the only thing which is off limits is filming activities inside the home. My advice to my clients is to live your life as if the insurance company has someone watching you at all times. This is not intended as a direction to curtail your activities. It is just a reminder that on the one day in the last month on which your condition has allowed you to go out and run those long overdue errands, or take the garbage can down to the end of the driveway or lean over and pick that one weed, the insurance company may have someone right there filming you. In fact, the insurance company may have someone follow you around the grocery store with a camera hidden in the kiddie seat of the grocery cart. Another trick is to schedule a doctor’s appointment or Functional Capacity Evaluation. For some reason, the provider will be at some distance from your house. You can rest assured you will filmed during that trip. On the other hand, no one will film you the next three (3) days while you lay in bed trying to recover from the over-exertion.
Having an investigator follow you is not the only type of surveillance which insurance companies use. If the insurance company sends you to a doctor for an Independent Medical Examination or for a Functional Capacity Evaluation, the office staff will be asked to watch and see if your physical actions are consistent with your effort during the evaluation. It is the opinion of this writer that the insurance company cannot rightfully ask the evaluator’s office to go above and beyond the evaluation itself. This would make the medical evaluator also a fact witness. This is something to which the claimant did not agree by cooperating with the request for the evaluation.
There is an additional problem with surveillance in cases governed by the federal statute commonly referred to as the Employee Retirement Income Security Act (”ERISA”), found at 29 U.S.C. §10101 et seq. As discussed elsewhere on this website, there is case law which may limit the evidence which a claimant can present in Court to support the claim for benefits under ERISA. There may never be the opportunity to cross examine the fact witness who provides surveillance evidence. For example, the investigator whose only training consists of being taught how turn on and point a camera will routinely make medical opinion statements in the “reports” he files even though he is grossly unqualified to do so. The same is true of the medical staff which suggests that claimant’s actions were different in the parking lot than in the office. These unsubstantiated statements are not subject to cross examination yet there they are in the documents submitted by the insurance company to the Judge in support of the benefit denial.
Fortunately, the Courts have recognized that surveillance has a limited use in benefit determinations. An example of a case which addressed the issue is Cross v. Metropolitan Life Ins. Co., 2008 WL 4216555 (11th Cir. 2008). That case properly recognized that surveillance is but a mere “snapshot” of activity which fails to take into account the increased pain due to those activities. While the Cross case included overstatement by the insurance company regarding the surveillance, the case of Ridge v. Hartford Life & Acc. Inso. Co., 239 F. Supp. 2d 1323 (M.D. Fla. 2004) demonstrates the lengths insurance companies will go on these matters. In the Ridge case, the Court found that the insurance company had surreptitiously secured a prescription from a treating physician for a Functional Capacity Evaluation. On the point of surveillance, the Court found the surveillance film was not proof, standing alone, of disability. It is noted that the opinion of the Court in Ridge was vacated after the parties later settled the case. Ridge v. Hartford Life & Acc. Ins. Co., 2005 WL 889964 (M. D. Fla. 2005).
There are the highly publicized situations in which an insurance company has discovered, through surveillance, a claimant who is performing in a manner grossly inconsistent with the reports to the treating physician. Those cases do exist but in the vast majority of cases involving surveillance shows nothing of significance. In fact, “nothing of significance” should indicate that surveillance supports the claim for benefits. Insurance companies rarely see it that way. Insurance companies routinely uses surveillance to support a predetermined conclusion not actually supported thereby. While all surveillance materials are taken quite seriously, the author has practiced law over 30 years and has only seen surveillance which required him to specifically confront a client with the contents thereof on three (3) occasions. On two (2) of those occasions, the client truthfully said the doctor knew of the activity and had okayed it (one including scuba diving!). This means that out of the many hundreds of surveillance films reviewed, only once did it prove of any significance to the case. Notwithstanding, all surveillance must be taken seriously.
The only legitimate conclusion is that insurance companies routinely use surveillance to support predetermined conclusions. My clients can rest assured that they will be carefully advised about surveillance and issues arising as a result thereof.
The law office of Herbert M. Hill, P.A. represents clients throughout the southeastern part of the country. We would be happy to assist if you are having difficulty with any issue arising out of your private short term disability or long term disability policy claim or any claim arising under the Employee Retirement Income Security Act (ERISA), including claims for short term disability benefits, long term disability benefits, pension benefits, 401k claim, group medical claim or any other employer provided benefits which you believe you have been wrongfully denied.
You can contact Herbert M. Hill at www.herbertmhill.com or at (407)839-0005. You are also welcome to Email Herbert Hill directly at hmh@herbertmhill.com.