Long-term disability (“LTD”) insurers will sometimes conduct surveillance of benefit recipients and claimants to assess their ongoing entitlement to benefits. Disability insurers will look for video surveillance footage that captures physical activity inconsistent with the claimant’s alleged disability. Naturally, this can be a cause for concern and feel like an invasion of your privacy. Therefore, it is important to understand the significance of surveillance and its impact on your LTD benefit claim.
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Relevant Privacy Laws
One must first consider privacy laws to fully appreciate the nature of surveillance. Privacy laws vary from state-to-state. In general, it is illegal to record someone in places where they have a “reasonable expectation of privacy,” including inside their homes. That is the case even if the subject of the recording is visible from the street outside the home. However, if the subject is outside of the home, then recording them is fair game. Many states also prohibit audio recordings without consent. In Illinois, all parties to the oral communication must consent to being recorded; and it is unlawful for a person to knowingly make a video recording or transmit live video of another person in their residence, a restroom, tanning bed/salon, locker room, changing room, or hotel bedroom without that person’s consent. Assuming the insurer conducts the surveillance within those legal confines, it is unlikely that you would be able to sue them for invasion of privacy.
How Do Insurance Companies Do Surveillance?
The term “surveillance” can trigger thoughts of spying drones, wiretapped phones, and stolen text message records. However, the type of surveillance conducted by disability insurers is not quite as invasive or alarming. Indeed, insurers will often forego conducting surveillance for the majority of LTD benefit applicants and recipients because of the significant costs involved. However, if a disability insurer does decide to conduct surveillance, it will typically contract with a third-party investigator whose primary business is to surveil individuals. While less common, some insurers will also conduct a home visit by sending a representative of the company to conduct an interview with the claimant in their home.
For photograph and video surveillance, the private investigator will commonly position himself in a parked vehicle near the claimant’s home for several hours at a time – this is perhaps the easiest way to determine if a private investigator is watching you. The investigator will not knock on the claimant’s door or take pictures of the claimant while they are inside the home. However, they will observe and document the claimant’s movements outside the home. Similarly, if the claimant leaves the home, the investigator will tail them to wherever they are headed and take pictures and/or record a video of the claimant’s activity. Video surveillance of LTD benefit claimants typically takes place over two or three days, and insurers can conduct multiple rounds of surveillance if, for example, no activity is seen during the first round. The investigator will also likely perform a public records search as part of his or her investigation.
The prevalence of social media has also changed the way disability insurers conduct surveillance. In addition to (or instead of) conducting physical video surveillance of a claimant, disability insurers will frequently conduct “internet surveillance.” That consists of a search of a claimant’s public records and social media accounts, including Facebook, Twitter, Instagram, and LinkedIn. It is also common for insurers to conduct a standard background check as part of its electronic surveillance. The rationale behind this type of surveillance is the same as with physical surveillance – the insurer is looking for evidence that you are engaging in activities that are inconsistent with your physical and/or mental restrictions. As such, it is best to err on the side of caution and refrain from posting to social media while you are seeking disability benefits, and/or set your social media accounts to private with the highest privacy settings.
Surveillance & Disability Benefits
Federal courts have been consistent in finding that video surveillance, in and of itself, is usually not sufficient to establish that a disability claimant can engage in a normal workweek. As the United States Court of Appeals for the Seventh Circuit summarized in Marantz v. Permanente Med. Grp., Inc. Long Term Disability Plan, 687 F.3d 320, 329 (7th Cir. 2012):
- Surveillance evidence is of limited utility, the cases tell us, when the recorded data does not conflict with the applicant’s self-reports of limitations, or when the surveillance catches limited bursts of activity that might be anomalous. In other words, the weight given to surveillance evidence of this type depends both on the amount and nature of the activity observed.
In similar fashion, the First Circuit held in Gross v. Sun Life Assur. Co. of Can., 880 F.3d 1, 11 (1st Cir. 2018) that video surveillance reinforced, rather than undermined, a disability claim. In that case, the claimant was seen driving two hours to visit her mother in the hospital but was seen physically depleted the following day. Other activities that have been found to be insufficient, on their own, to justify a denial of disability benefits include: playing soccer with a child, flying a kite, playing 18 holes of golf, and walking a dog. As with anything, context is also important. The ability to play a game of golf will have no relevance if, for example, the claimant is claiming disability due to a cognitive impairment.
Nevertheless, video and photographic surveillance footage is relevant to a disability claim to the extent that it is disproportionate to the claimant’s reported medical conditions and self-reported physical abilities. Inconsistencies between the claimant’s reported symptoms and their activity level reflects negatively on the claimant’s credibility, which is critical to disability claims. Credibility is particularly important in claims involving subjective symptoms, such as pain or fatigue, because those symptoms are based entirely on a claimant’s self-reports.
What Can a Private Investigator Find Out About You?
It depends. The private investigator will only observe your activities in public places. In turn, they will only see the activities you decide to engage in when you are outside of your home. In other words, anything you make available to the public is discoverable by the insurer. While occasionally going grocery shopping or running brief errands hardly speaks to one’s ability to work on a full-time basis, it is more difficult to explain away any physically strenuous activity that you perform while being surveilled. That being said, you must be mindful of the fact that insurers conduct surveillance to search for evidence that can discredit a claimant, and they will interpret anything observed against you to use as evidence that you are not entitled to disability benefits.
Although it can be disconcerting, being surveilled by your disability insurer is generally not a cause for concern so long as you are not working and your activity level is consistent with your reported disabling impairments. Indeed, if the surveillance footage is consistent with your disability and your doctor’s restrictions, you can use it as evidence to demonstrate that you are still disabled. If you believe you have been surveilled and are unsure about your next steps, you should consult a disability benefits attorney with the expertise and knowledge necessary to ensure that your LTD benefit claim is not in danger of being terminated or denied. Even if your benefits have already been terminated or denied due to surveillance footage, an attorney can help to appeal and reverse that decision.