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 be 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 someone follow you is not the only type of surveillance investigators 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 investigators 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 to 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 investigators have a limited use in benefits 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 investigators, 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 use 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 and surveillance investigators to support predetermined conclusions. My clients can rest assured that they will be carefully advised about surveillance and issues arising as a result thereof.
Please keep in mind that the foregoing is not intended as legal advice applicable to any individual person’s unique legal situation. Its sole purpose is to give a general idea of the existing status of the law as it applies to the point of law addressed above. You cannot rely on the foregoing as legal advice. You cannot make legal decisions based on its contents. If you have questions arising out of this point of law, you should contact an attorney who routinely handles claims involving policies of disability insurance. The law offices of Herbert M. Hill, P.A. handles such cases and would welcome the opportunity to discuss your case with you, at no charge. You can contact me at 407-839-0005 or at hmh@herbertmhill.com.
If you would like, after discussing your case, we can set a conference. That conference would be free of charge and you would be under no obligation to hire me nor would you feel any pressure from me to do so.
Herbert M. Hill, P.A. is a law firm located in Orlando, Florida with a practice extending throughout the state of Florida and the southeastern part of the United States. Areas of practice include disability and employee benefit claims of all sorts. The firm handles any claims arising under the Employee Retirement Income Security Act (known and referred to as “ERISA”) for disability benefits, medical benefits, retirement benefits of any sort, including pension, 401k, termination agreements or the like as well as claims arising under private disability policies.
