Tag Archives: disability insurance surveillance

I used to practice __________ but now I’m _____________?

 

You spent years in school and invested countless hours to establish and maintain your practice.  You even protected this investment by purchasing a disability policy.  Yet, if you do become disabled and make a claim, your insurer might still make the argument that you are only trying to retire and get paid for it.  Unfortunately, disability insurance claims by doctors and other healthcare professionals are especially targeted for denial or termination.

When you are disabled and are no longer able to practice in your profession, it may seem logical to simply refer to yourself as “retired,” especially if you are not working in another capacity.  While it’s certainly understandable that you may not want to explain to everyone who asks why you’ve hung up your lab coat, you need to keep in mind that innocently referring to yourself as retired will likely prompt your insurer to subject your claim to higher scrutiny.  Insurance companies often attempt to take statements out of context in order to deny or terminate benefits by alleging that a legitimately disabled claimant is:

  • Malingering
  • Making a lifestyle choice.
  • Unmotivated by or unsatisfied with work.
  • Embracing the sick role.

Remember, in the insurance company’s mind, there is a big difference between “disabled” and “retired.” Below are some common situations where you should avoid referring to yourself as retired:

  • When asked for your profession on claim forms.
  • When talking to your doctors or filling out medical paperwork.
  • On your taxes, other financial forms, and applications.
  • Around the office.
  • At social functions or gatherings.
  • On social media.

Insurers can—and often do—employ private investigators to follow claimants on social media; interview staff, family, or acquaintances; and track down “paper trail” documents (such as professional license renewal forms, loan applications, etc.) to see if you have made any statements that could be construed as inconsistent with your disability claim.  Insurers also routinely request medical records and may even contact your doctor(s) directly regarding your disability.  So, for example, saying something off-hand or even jokingly, such as “I’m retired—I can stay out as late as I want now!” to your doctor, or at a social event like a block party, could lead to your insurer trying to deny your claim if they later spoke to your doctor or your neighbor.

While the focus of your claim should be on your condition and how it prevents you from working, insurance companies can latch on to innocent statements like this in an effort to deny legitimate claims. Eschewing the word “retirement” is a good and easy first step to help avoid unwanted and unwarranted scrutiny from insurers.

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Am I Under Surveillance?

In previous posts we’ve looked at when disability insurance companies are most likely to conduct surveillance of claimants and new technologies that they’re deploying to do so.  Surveillance is a common tool used by disability insurance companies in the claims process.  Insurers claim that surveillance is merely used as a fraud prevention tool to ensure that claimants’ disabilities are legitimate.

Unfortunately, more often it is used to distort the true nature of the claimant’s disability and deny legitimate claims through photos, videos, and observations by investigators that are intentionally taken out of context.  Even if your limited activity is consistent with your disability, a photo or five-second video clip can paint a misleading picture.  Insurers can use this information to terminate benefits, shifting the burden to you to prove that the surveillance is not representative of your disability.  This process can drag on for long periods of time – during which you are not receiving your monthly benefits.

An insurance company’s investigators may employ a number of different tactics during surveillance of claimants.  In this post we’re going to take a look at several of these tactics and discuss some of the signs that may indicate you are under surveillance.

Social Media

Social media monitoring has become one of the most prominent methods of surveillance used by disability insurers during the claims process.  Disability insurance companies hire tech-savvy millenials to comb the Internet and social media websites for photos, videos, and posts they can use against you.  They will also look for patterns in your photos, check-ins, and posts to better predict where you are at any given time for in-person surveillance.

As a general rule of thumb for social media, you should adjust your privacy settings on Facebook, Instagram, Twitter, and other sites to allow only approved people to view your profile, your posts, and your photos/videos.  Some social media sites have separate privacy settings for your profile and your photos/videos – be sure to take a careful look at how the privacy settings on each site are organized so you’re covering all your bases.

If you receive a friend request from somebody you don’t recognize, it is better to err on the side of caution and reject the request.

 “Interview” by Investigator

One of the most obvious and most common signs that you are under surveillance is an investigator sent to your house by the insurance company to “interview” you.  During this interview, they may ask you what you do every hour of the day under the pretense that the insurer needs a better idea of how your disability affects your daily activities.  They may also ask to take a picture of you or take a photocopy of your driver’s license for “the file.”

These requests may seem harmless, but they have an ulterior motive.  The purpose asking what you do every hour of the day isn’t to get a better understanding of your disability, it’s to help the investigator get an idea of where you are at any given time so they can conduct more effective surveillance.  The purpose of taking your photo or asking for a copy of your driver’s license isn’t simply for the file – it’s to help investigators more readily identify you when you are out in public.

Unusual Telephone Calls

If you or your family members begin receiving telephone calls from unusual phone numbers, you might be under surveillance.  Investigators will sometimes call a number associated with you, your residence, or your family members, ask for you, and hang up after they get a response.  This tactic is used to determine whether or not you are home, and if not, to get an idea of where you are so they can conduct surveillance.  If you are able to, keep track of any phone numbers from which you receive multiple suspicious calls, and create a list of Do-Not-Answer phone numbers.

Unusual Vehicles Outside Your House

Investigators are known for sitting outside claimants’ houses for hours at a time to get photos and videos of claimants doing activities around the house and in the front yard.  If you see an unfamiliar car parked on the street near your house for long periods of time, it may be an investigator hired by your disability insurance company.  Occasionally they will put up “blackout” shades in their windows when they park so you cannot identify them, and in some cases will actually go as far as removing their license plates while parked.  If you see a vehicle like this parked near your house, we suggest closing your blinds and avoiding any activity in the front yard.

Unusual Driving Behavior

Another common surveillance tactic used by investigators is “tailing” claimants.  An investigator may follow a claimant for hours at a time as he or she drives around going about their daily activities.  Like home surveillance, tailing creates many opportunities for an investigator to snap a quick video or photo that the insurer can use to misrepresent your disability.  If you see a suspicious vehicle following you too closely, changing lanes when you change lanes, or exhibiting other unsafe driving behavior, it may be an investigator from your disability insurance company.

The safest way to determine whether or not you are being followed is to make three consecutive right turns.  If the suspicious vehicle follows you through all three turns, you are likely being followed.  If you are being followed, do not engage in unsafe driving behavior or attempt to confront the other driver.  It is better to simply return to your home.  If their driving behavior is unsafe or makes you uncomfortable, don’t hesitate to call the police.

Strangers at Your Door

Investigators are known to come to claimants’ doors posing as door to door salesmen or community members gathering signatures for petitions.  Like many of the other tactics, this is intended to give the investigator a closer look at your body movements, your posture, and your behavior.  If you see somebody unfamiliar at your door, ask a few questions through the door about the purpose of his or her visit before you open the door.  If the answers do not satisfy you, simply ask them to leave.

Rule Number One

With any of these surveillance tactics, the most important thing to remember is that if you feel uncomfortable or unsafe, you have every right to call the police.  Your disability insurance company has the right to conduct surveillance as long as they obey the law.  However, they do not have the right to trespass, endanger your safety or your family’s safety, or harass you.  If you think you may be under surveillance or have any questions about the tactics being used by your insurer, contact an experienced disability insurance attorney.

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Wearable Fitness Trackers and Disability Insurance Litigation: How Your Fitbit Could Help or Hurt Your Claim

Recently, courts have been exploring the use of data from wearable fitness trackers in litigation.  Devices like the FitBit, Jawbone UP, and Nike Fuelband have the capability to track all kinds of fitness-related data, such as steps taken, heart rate, temperature, calories burned, and sleep patterns.  In cases where someone’s physical abilities are at issue, as is often the case with disability insurance claims, this data can be valuable.  But who is this data most valuable to–the claimant or the insurance company?  And is that value outweighed by a claimant’s right to privacy?  These are questions yet to be fully addressed.

Benefits and Drawbacks.  For claimants, data from a wearable fitness tracker could be a great way to show how a disability has caused a cessation or downward trend in activity. Providing the data to an insurance company may give a better picture, over a longer period of time, than any single doctor’s visit or Independent Medical Examination.

On the other hand, providing wearable fitness tracker data to an insurance company could hurt a claim in several ways.  First, if your disability isn’t the type that would prevent you from walking (such as a hand injury, vision problems, orthopedic injuries where movement is part of physical therapy, etc.), step counts could be irrelevant. Nevertheless, data showing a high step count can give an insurance claims adjuster or a jury the erroneous impression that you are very physically active and thus not “disabled.”

Second, for claimants that haven’t accurately described their limitations to the insurance company, the tracker’s data can be presented as objective evidence that the claimants weren’t telling the truth.  For instance, if a claimant wrote on a claim form that he “never” walks for more than 10 minutes at a time, then he has a very unusual day where he had to walk for 30 minutes, the insurance company could use the fitness tracker data to argue that the claimant is a liar.  (In such a scenario, the claimant should have told the insurer that he “rarely” walks more than 10 minutes, or that he tries to avoid doing so, as opposed to saying he “never” does).

Third, inaccurate data could lead the insurer to make inaccurate conclusions. Wearable fitness trackers aren’t perfect.  Step trackers tend to log movements other than walking as steps, such as when the wearer raises her arms up and down.  Heart rate monitors will track increases in heart rate that are the result of mental or emotional stress in the exact same way they track increases caused by physical exertion.  There is also the possibility of human error that affects the accuracy of the data.  For example, if you forget to turn your device into “sleep” mode, it can’t track how restless your sleep is.

When Data Can Be Required.  An insured may or may not want to provide fitness tracking data to an insurance company voluntarily, but if the insurance company requests it, does the claimant have to comply?  The answer is less than clear.

In the claim context (when no litigation has ensued), the insurance company can only impose requirements covered in the policy.  Of course, policies don’t explicitly state that a claimant has to provide fitness tracker data–at least not yet.  However, an insurance company could argue that policy clauses requiring you to “cooperate” with the claims investigation or provide “proof of loss satisfactory to us” include a requirement to produce this type of data.  In those instances, it’s best to have an attorney evaluate the request to see if it is, in fact, required under the policy.

If a lawsuit has been filed, the insurance company may have more leeway when it comes to requesting wearable fitness tracker data.  While it is doubtful that an insurer could force a claimant to wear a tracker if he or she isn’t already, it’s easy to imagine a case where an insurer requests existing data from a device that a claimant already uses.

In federal courts, where most disability insurance cases are litigated, the insurance company can ask for any information that is relevant, or reasonably calculated to lead to the discovery of information that is relevant, to the claims or defenses in the case. The only exceptions are for things like privileged information (such as communications with your attorney) or requests that cause undue annoyance, embarrassment, oppression, or burden.

For data stored online, insurers could subpoena the data directly from the device manufacturer.  Fortunately, some fitness tracker manufacturers have already publicly stated that they will resist such subpoenas to the extent possible.  Insurance company lawyers are more likely to request that data from the claimant directly, in which case it becomes very important for the claimant’s attorney to evaluate whether that request is allowed under court rules.

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Private Investigators Track Disability Claimants with Stingrays

Disability insurance companies often hire private investigators to conduct surveillance on disabled insureds after they file for disability benefits.  In a previous blog post, we discussed some methods private investigators use to monitor disability claimants.  In this post, we will take a closer look at one of the latest tools private investigators now use to assist them with tracking disability claimants—stingrays.

A stingray is a new tracking device that operates as a miniature cellphone tower from inside a private investigator’s vehicle.  A private investigator can use this mobile tower to connect to a disability claimant’s cellphone—even when the disability claimant is not using the phone to make a call—and measure the cellphone’s signal strength.  Once he measures the signal strength from a particular location, the private investigator drives the stingray to another position for another measurement.  After the private investigator does this a few times, the stingray device then uses the collected data to triangulate and locate the disability claimant’s cellphone.  Since most people tend to always carry their cellphones, the device has proven to be an effective locator.

Stingrays are a relatively new technology and therefore the law surrounding the device is still largely unsettled.  The technology is becoming more and more popular, though, in part because of the limitations the Supreme Court put on GPS tracking devices in United States v. Jones.  In Jones the Court held that law enforcement officials needed a search warrant before physically attaching a GPS tracking device to someone’s vehicle because the physical attachment of a GPS tracking device to another’s property constituted trespass.

Because the stingray does not require physical attachment, some police departments have opted to invest in this newer technology, believing that the law permits them to use the equipment without first obtaining a search warrant.  In Arizona, for example, the Gilbert police department has already spent $244,000 on stingray equipment.  Many private investigators also advertise this technology and use it when conducting surveillance on disability claimants.

The legal assumptions that police officers rely upon to justify use of stingray equipment without first obtaining a search warrant are questionable and in dispute.  Civil liberty organizations, like the ACLU, argue that warrantless cellphone tracking is a serious invasion of privacy that is prohibited by the Fourth Amendment.  The Department of Justice, on the other hand, believes that requiring a search warrant is not only unnecessary, but would also severely limit law enforcement’s ability to operate effectively.  Until these issues are resolved by the courts, or until legislatures pass laws addressing stingrays, private investigators will likely continue taking advantage of the law’s gray area by using stingray equipment to assist disability insurance companies with denying claimants’ disability benefits.

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Private Investigators “Pretexting” to Deny Disability Claims

Private investigators hired by disability insurance companies pretext to acquire your personal information from others.  They do this by pretending to be someone else (often you), contacting people you know, and then probing them for your sensitive information.  Pretexting is not only deceptive and unprincipled, but it may also be illegal.  Private investigators engage in this conduct to produce evidence that will enable insurance companies to deny your disability insurance claim.

The Gramm-Leach-Bliley Act specifically addresses pretexting as it pertains to obtaining personal information from financial institutions.  Many private investigators believe the scope of the Act is limited to pretexting with financial institutions only, therefore, they assume other pretexts—those not involving contacts with your financial institution—are legal.  This is a misconception, however, according to Joel Winston, the Associate Director of the FTC, Division of Financial Practices.  In an interview with PI Magazine, Winston clarifies the scope of the Act:

First, we should dispel the misimpression, if there is one, that the pretexting provisions of [the Gramm-Leach-Bliley Act] only apply if the pretexter is getting “financial information.”  Actually, what the statute says is if you are getting any personal, non-public information from a financial institution or the consumer, that is covered by the statute.

(emphasis added).  Winston also answers other questions about pretexting as they relate to private investigators.  Although the Q-A session is mainly designed to illuminate private investigators of legal fences surrounding the practice of pretexting, it is also an excellent source of information for those who fear they might become victims of unlawful pretexts, or for people who want to learn more about the illegality of pretexting.

To view the article click here.

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Insurance Bad Faith: Private Investigators and Their Surveillance Practices

Insurance companies often will hire a private investigator to aid in terminating disability insurance claims.  Ostensibly, the purpose of a private investigator is to expose dishonest individuals of fraudulent disability insurance claims.  A private investigator may even advertise as a “Disability Insurance Fraud Specialist.”  All too often, however, insurance companies and their investigators are not seeking to expose fraud, but to manufacture it.  They produce “evidence” only to aid in denying disability insurance claims—even wholly legitimate ones.  They do so because there is a strong financial incentive to deny disability insurance claims.

At Comitz | Beethe, we have dealt with these insurance companies and their private investigators time and again.  We know how they operate and how to prepare our clients.  We have developed a short list of basic information about private investigators so you can know what to expect:

  • When are they watching?  In a previous post, we noted the five most popular times for disability surveillance: (1) holidays, (2) birthdays, (3) weekends, (4) activities claimant listed in insurance company’s activity log; and (5) near the end of fiscal quarters.
  • Who are they?  Typically, private investigators are just as the name indicates – private people from private companies.  Disability insurance companies contract with these private companies to conduct surveillance on disability claimants.
  • What are their surveillance methods?  Particular tactics will vary depending upon the private investigator, the disability insurance company and the disability claimant.  However, many methods are common across the board.  Basically, the private investigator will inconspicuously follow a disabled claimant with a video-capturing device as the disabled claimant undergoes day-to-day activities.  If the private investigator has difficulty locating the disabled claimant, the investigator may use different tactics, such as pretexting, stake-outs or tracking devices, to locate and track the claimant.  Our last blog post describes these other tactics in detail.

The private investigation industry has a reputation for its shady practices.  At Comitz | Beethe, we uncover and expose private investigators’ objectionable “tracking” methods to protect our clients.  We hold insurance companies and their private investigators accountable under the law.


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Private Investigator Surveillance Methods and Terms

Private investigators use a variety of tactics to produce evidence that may be used to deny your disability insurance claim.  Below is a list of different private investigator surveillance methods and terms.  

Disability Surveillance – refers to the monitoring, recording and documenting of activities or behavior of another.  In the disability context, this surveillance is called sub rosa surveillance.  Sub rosa, a Latin phrase which translated means “under the rose,” denotes the secretive and clandestine nature of private investigator actions.

Disability Stake outs – according to Shannon Detective Service, Inc.—a private investigation company whose client list includes Arizona Counties Insurance Pool, CNA Commercial Insurance, Danielson Insurance, Farmers Insurance, Federated Mutual Insurance Company, Hartford Insurance, Insurance Company of the West, Liberty Mutual Insurance, Nationwide Insurance, Progressive Insurance, Seabright Insurance Company, Sedgwick Claims Service, Travelers Insurance and Westfield Insurance—this is a stationary surveillance method by which a private investigator documents and records a claimant’s activities.  The hallmark feature of a stake out is that the private investigator does not move or follow the disabled claimant.  In a typical stake out operation the private investigator may station in front of your home or office and record you as you come and go.  The goal of the stake out is to produce evidence that will enable the insurance company to deny your disability insurance claim.  An ABC News story shows how an insurance company successfully denied a doctor’s disability claim with evidence produced during a stake out.

Disability Pretexting – the Federal Trade Commission (FTC) defines pretexting as “the practice of getting your personal information under false pretenses.”  Private investigators are engaging in illegal conduct when they use pretexting to obtain your personal information from a financial institution.  See 15 U.S.C. § 6801, et seq.

Here’s an example of how this works: someone pretends to be you and calls your bank.  The person claims to have forgotten your checkbook, account number, social security number or other sensitive information.  He then tries to get this information from the bank.  Such conduct constitutes pretexting and violates federal law.  Id.

Although private investigators claim to use only “appropriate” pretexting methods, methods which are not illegal per se, these are the same techniques which are used to facilitate identity theft and consumer fraud.  Check out the FTC website for more information about pretexting and how you can protect yourself.

Disability Tracking Devices and GPS – this area of the law is still evolving.  In a recent Supreme Court case, United States v. Jones, the Court held that attaching a GPS device to a vehicle constitutes a “search” under the Fourth Amendment; therefore, law enforcement officials need a warrant before installing the device.  132 S. Ct. 945, 949 (2012).  Although the Court did not address the attachment of GPS devices in the private investigation context, its decision largely turned on the physical trespass involved in attaching a GPS device to another person’s vehicle.  Id.  The Court stated:

It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a “search” within the meaning of the Fourth Amendment when it was adopted.

Id.  Therefore, this ruling may be used to argue against private investigator installations of GPS devices since such installation would also constitute a physical trespass.  Private investigation companies, such as Shannon Detective Services, Inc. (SDS), are now looking how to bypass the physical trespass issue altogether through implementation of other technologies that do not require physical attachment.  Here are two examples of other technologies cited from the SDS website:

  • Disability stingrays (a device that can triagulate a cell phone signal to locate a user) will become popular in the future as a way to skirt around the new GPS laws for law enforcement.
  • Disability ping of cell phones (by accessing a user’s cell phone GPS chip) will also fill the gap created by GPS legislation since the FCC has mandated GPS chips to  be installed in all new cell phones by 2018.
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May is Disability Insurance Awareness Month — A Good Time To Ask Yourself If You Can Collect on Your Disability Insurance Policy

May 2011 is Disability Insurance Awareness Month.  While the insurance industry likes to increase awareness of purchasing disability insurance, medical professionals who long ago purchased disability insurance and have been paying premiums on disability policies for many years may opt to instead raise their awareness of the obstacles they are likely to encounter should they ever need to make a claim on their disability insurance policy.  The article below by disability insurance attorney Edward O. Comitz provides some food for thought.

DISABILITY INSURANCE: CAN YOU COLLECT UNDER YOUR POLICY?

By: Edward O. Comitz, Esq.

You have practiced medicine for your entire career. Your spouse and children rely on you, and you have numerous financial obligations. The stress and trauma of a disability can cause you significant problems. To protect yourself in case of total or partial disability, you have purchased disability insurance.

Unfortunately, you suffer an injury or become so ill that you cannot continue your practice, and you then file a claim with your insurance agent. Of course, you expect it to be honored. Instead, shortly thereafter, you are contacted by an insurance adjuster, not your agent. Unlike your agent, the insurance adjuster is hostile; the questions he asks imply that you are malingering. You try to be cooperative, providing the insurance adjuster with the additional information he requests, but again your claim is denied. Adding insult to injury, you learn from the adjuster that the insurance company has secretly videotaped your activities and, based on the tapes, believes that you are not disabled at all. Dumbfounded by the insurance company’s response, you ask yourself if there is anything that you can do to make the insurance company pay the benefits it promised. The answer is yes.

Typically, the type of policy that medical and dental professionals purchase is what is known as an “own occupation policy.” Such policies provide compensation following a disability that prevents the insured (the person who purchased the policy) from performing the particular duties of his or her profession. Thus, the insured may be entitled to benefits even if he or she could in fact perform work of a different nature. For example, if a surgeon purchases an “own occupation policy” and severely injures his hand, but could nevertheless perform some or all of the duties of a general practitioner, the surgeon is considered disabled under an “own occupation policy” and entitled to benefits.

Disability provisions greatly vary in the language used, and coverage is often circumscribed and restricted by qualifying words and phrases. Accordingly, each policy of insurance must be individually reviewed to determine whether a particular claim is covered. What may appear to be an “own occupation policy” could in fact be an “occupational policy” if “total disability” is defined to include the insured’s inability to perform “all” duties or “every” duty pertaining to the insured’s occupation. In such a case, the insured may not be entitled to benefits if he or she can perform comparable employment for which the person is suited by education, experience and physical condition. Continue reading May is Disability Insurance Awareness Month — A Good Time To Ask Yourself If You Can Collect on Your Disability Insurance Policy

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Disability Insurance: Who Gets Denied?

Answer:  Individuals with neck and back pain.

Musculoskeletal disorders make up 23 percent of new disability claims each year, says the Council for Disability Awareness, an insurance industry trade group.  You can expect extra scrutiny if you file a claim, says Arizona disability attorney Ed Comitz.   The challenge with musculoskeletal claims  is that there may be  little objective evidence to verify the pain.   Most insurers conduct surveillance on individuals with neck and back problems, attempting to portray them in the worst light notwithstanding the varying nature and severity of pain.

Claim Analytics, a provider of predictive modeling solutions to the insurance industry, published the results of its “2010 Long Term Disability Benchmarking Report.”  The results show significantly varying results (a 22% difference) when it comes to dealing with claims,especially those based on back injuries.  According to Claim Analytics, this reflects on the claim management practices employed by each carrier, and specifically how different carriers treat back pain.

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