LEGAL GUIDE
Written by attorney Paul Joseph Dombeck | Apr 3, 2012

Insurance Company Surveillance of Accident and Disability Claimants

As an Accident and Disability Plaintiff Attorney, I am increasingly finding that the Plan Administrators and/or Claims Adjusters for Long Term Disability benefit insurance companies are hiring detectives to conduct ‘sub rosa’ surveillance to monitor and record the daily activities of disability benefit claimants and/or recipients.

What surveillance detectives are finding:

Most of the surveillance I have heard about from my clients over the years is actually fairly innocuous, in other words the images captured by the cameras are not significantly damaging to the claim, and I believe this is for several reasons:

1) most disability claimants truly have a significant degree of physical limitation and quite simply this is reflected in their activities.

2) most surveillance detectives are seeking not to run afoul of the law governing permissible surveillance techniques, which generally relegates the detective’s monitoring scope to some of the claimant’s activities outside of the home, whereas many disability claimant of medical necessity spend quite a bit of time indoors.

3) Many of the commonly seen claimant physical activities are things that everyone has to do every once in a while such as unloading groceries from a car trunk or driving a car to a medical appointment.

Remember that most claimants are not asserting on claim forms that they ‘never’ can do the various activities that constitute the assortment of "activities of daily living". Thus unless the disability impairment claimed is of the nature of some sort of systemic paralysis, generally it is recognized that most claimants are not vegetables and everyone can do a little something in the way of activity sometime.

Be aware however that even these less than compelling camera images are often utilized by the insurance company anyway, and there are several things that may explain this:

1) Undertrained and/or overzealous insurance adjusters often do not understand that the images captured may not mean as much as they would like them to.

2) The insurance adjuster knows the images captured are of limited significance and utility, but may choose not to turn them over to a claimant who has no lawyer, choosing instead to intimidate such claimants with statements implying that the recorded images have significance beyond what they really do.

3) The Insurance company just spend several thousand dollars for the surveillance, and the adjuster who ordered it, perhaps too hastily, may not want to write in his/her file that the images captured are of limited significance.

4) A picture is worth a thousand words, ....imagine claimant grandmother with severe fibromyalgia putting on a brave front as her relatives pull up in her driveway for a visit. Out of the car hop her toddler grandchildren, she picks up the two-year-old with a smile on her face and laugher in her voice, she walks the child into the house. All this has been captured on film by a surveillance detective parked in the street. Of course what wasn’t captured on film is this claimant a short time thereafter having to lie down for two hours in pain because of the ‘burst’ of activity. In other words the context is rarely filmed or otherwise acknowledged by the insurance company. And the reviewing Federal District Judge in the eventual disability lawsuit whereto the Defendant insurance company presents the images sees only the moment with the grandchild, including the claimant’s seeming facility in lifting the 25 lbs child with no obvious signs of pain or discomfort. The claimant is left trying to rebut to the court through written argument the supposed lack of context to this compelling image, particularly since ERISA disability Court procedure typically does not allow any additional evidence beyond what was in existence at the time that the insurance company presented it’s final administrative denial to the claimant.

A potential for great harm to your claim

Disability claimants should be aware that even when unfairly used out of context by the insurance company, such recorded images remain powerful defense tools for the insurer, and certainly no Plaintiff lawyer contemplating representing an claimant who has been filmed doing something potentially contrary to the notion of continuing total disability is ever happy to hear that such evidence will be part of the Defendant insurance carrier’s evidence arsenal.

Be aware also that nothing prevents the insurance carrier from taking another run at surveillance when the first does not yield compelling evidence. In one recent case, the first series of images captured by the carrier were less than compelling from a defense standpoint, and so after I began representing the claimant, the insurance company sent back the cameraman and subsequently obtained a more problematic set of images.

Claimant Observations

When I warn claimants of the possibility they may be watched and/or followed, the first reactions are typically:

1) "I paid into this disability Plan, why are they treating me like this?"

The disability carrier usually has a financial incentive to deny your claim, sometimes they don’t play nice. And from another perspective realize that the disability carrier has a legitimate and reasonable legally recognized interest in deterring fraud.

2)"You know I kind of thought someone was watching or following me"

Absolutely! Don’t ignore your instincts.

3)"It’s creepy"

Yes it is, but use whatever knowledge you have of the surveillance to be more cognizant of activities you may be doing that could be taken out of context if filmed by the insurance carrier

Some Claimant Options

I always love to hear when a claimant tells me how they identified and confronted the surveillance detective and/or called the police on the surveillance detective out of the legitimate fear and concern that flows from an awareness that one is being stalked as it were by some unknown person. Such a turn of events does three things that are helpful to the claimant:

1) the insurance adjuster who hired the surveillance detective is not too happy with that vendor for getting ‘busted’ on the job! So much for ‘SubRosa’, the adjuster is more likely to consider not using the film results against the claimant.

2) The claimant becomes aware of the surveillance and becomes more aware activities he/she might be doing that could be taken out of context if captured on film.

3) The fact the claimant became aware enough of the surveillance to confront the ‘stalker’ begins to suggest to a reviewing judge or magistrate that the surveillance may have been too intrusive or aggressive under existing legal surveillance methodology, and/or otherwise introduces a ‘giggle factor’ to the reviewing judge who is consequently less sympathetic to the carrier and more sympathetic to the claimant.

One thing I would caution, is if you think you are being followed, I would for safety reasons where possible recommend: 1) either calling the police to confront the strange vehicle or person, or, 2) at least have someone with you and/or be in a public place if you choose to confront the ‘stalker’ yourself. After all, you can never know if the ‘stalker’ is not from the insurance company and is someone out to rob or hurt you.

Does the Social Security Administration hire surveillance detectives to monitor Social Security claimants and recipients?

I have seen it happen but very rarely. The principal reason the Social Security Administration does not use surveillance more is clearly limited resources; the SSA has tens of thousands of claimants at any given time and is often underfunded by Congress and accordingly spends it’s limited resources on organization and management of it’s complex rules, procedures, as well as it’s numerous offices and employees.

I suspect another reason lies in the differences I’ve observed between the Long Term Disability and Social Security claim systems; namely that the Social Security qualifying rules are quite stringent and the power of hearing judges to assess claimant credibility sufficiently sweeping that the Social Security benefit claim system has less need of additional safeguards against claimant fraud then do the Private and ERISA Long Term Disability carriers.

Is this surveillance an ‘Invasion of my Privacy’?

This is one of the questions I hear most frequently from claimants, and it’s an understandable question in light of the general creepiness of being secretly watched.

Before getting into the law on this issue, I’ll note that my first thought which I sometimes relay to my clients is ‘that is not the main issue’. In other words, given that such surveillance findings have historically been held admissible in Court, the notion of pursuing a separate Invasion of Privacy civil action lawsuit in response to the intrusion is impractical if not fruitless to the disability claim at hand, and what the claimant and his/her attorney really need to focus on is:

1) What did the surveillance reveal; and

2) Awareness of the potential for follow-up and repeat surveillance efforts by the insurance company.

Back to the legality question: Legally surveillance by insurance company if done too intrusively may be actionable in Tort, see e.g., Tucker v. American Employer's Insurance Co., 171 So. 2d. 437, 438 (Fla. Dist. Ct. App. 1965, in which the court found that surveillance investigators must use reasonable means in order to insulate themselves and/or their insurance company employers to a civil lawsuit.

That having been said, the practice is generally permissible, the rationale being "...the public interest in exposing fraudulent claims, a plaintiff must expect that a reasonable investigation will be made subsequent to the filing of a claim." Thus generally the most common surveillance, namely reasonably conducted surveillance of a claimant outside the home is generally permissible because in leaving the house claimants alread expose their activities to the public at large, see e.g., Forster v. Manchester, 189 A.2d 147 (Pa. 1963).

Additional resources provided by the author

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