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 email@example.com.
It is unfortunate that so many people do not realize that the disability insurance company is allowed to offset benefits you receive from other sources, thereby dramatically reducing or even, in some cases, eliminating the benefit entitlement. Just about every person who comes to me is surprised to learn that the disability benefits they paid for are not over and above “other benefits” to which they are also entitled. Those “other benefits” which your disability insurance company might claim as an offset against (or, reduction of) your disability benefits might include Social Security Disability benefits, workers’ compensation benefits, claims against third parties who cause the disabling medical condition, retirement benefits and others. The governing Plan Documents, “Summary Plan Description” and insurance policy need to be reviewed in detail to determine which “other benefits” can be used to offset benefits. Also, the method by which the deduction can be taken needs to be considered. Issues concerning receipt of lump sums of “other benefits” routinely arise as well.
The strange phenomena I have experienced is that when these other benefits are received, the disability insurance company will simultaneously claim the overpayment and then soon after find a reason to deny the benefits they owe. This may seem somewhat astonishing but that is only because it is. The point being that when you receive “other benefits” from other sources, you need to proceed with caution. The first issue is the correct amount of the overpayment. This is one area in which this author can provide particular assistance because the undergraduate degree I received before going to law school was that of a Bachelor of Science in Business Administration with a major in Accounting. I am not suggesting I can assist you with tax or accounting issues; I just have no problem dealing with numbers which can get quite complicated in these situations.
It is important to consult an attorney as soon as you become concerned that it may be necessary to pursue disability benefits, whether on a Short Term or Long Term basis. It may not be necessary to actually retain an attorney at this time but it would be important to get some advice about the “in and outs” of the process so that you can determine when it is, in fact, necessary to retain an attorney. Also, establishing a relationship with an attorney early on would allow you to get input throughout the process as necessary. This is especially true when you have questions about the process.
You must remember that the insurance company’s claims representative is answering your questions in a manner most beneficial to the interests of the insurance company, not in your interest. Many persons with a clear entitlement to benefits either lose those rights or hamper the ability to secure prompt payment thereof as a result of trying to go it alone. Remember you are seeking to protect the very income stream on which you will rely to maintain your lifestyle. It is fair to say that this is one of the most valuable assets you have. The attempt to “go it alone” routinely results in mis-steps in the application phase of the claim or thereafter resulting from either ignorance of the intricacies of that process or misplaced reliance on representations made by the claims representative.
Remember that while this is a right you earned and paid for, that fact does not necessarily mean the insurance company has any intention of paying or making the process easy.
There are deadlines and job continuation issues which must be successfully dealt with during the application phase. These are delicate issues. In fact, there have been claims handled by this law office in which the insurance company attempted to use the claimant’s continued efforts to work as evidence that the claimant was not disabled!
Of course, from the onset of the claim would be best but early representation is not always necessary. However, it is most important for representation to be secured as soon as benefits have been denied. This is because the legal evidence in the case will be accumulated during the administrative appeal of the benefit denial not during the lawsuit which might follow. The only evidence the Judge will in rendering a decision on the lawsuit is that which was before the benefits decision maker at the time the benefit denial was rendered. So, if you hire an attorney after that point in time, your attorney will have no input on the evidence the Judge will review. This is a result which will almost preclude a favorable outcome on your case.
ERISA is an acronym for a federal statute referred to as the Employee Retirement Income Security Act. This name is somewhat misleading because it sounds as though it only relates to “retirement income,” in fact, the act governs your entitlement to just about any employment related benefit, including retirement income, pensions, 401ks, disability benefits, group medical benefits, life insurance and death benefits and others. In addition, despite Congress seemingly passing a statute designed to protect the employee, the statute, in fact, does anything but that. The statute is a trap for the unwary and its provisions are slanted in favor of the employer or insurance company. It is an area of the law in which a person should seek legal representation.