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:
- 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.
In Part 1 of this post, we discussed “stingrays”—a relatively new technology that is becoming more and more common. In Part 2, we will be discussing another new technology that is becoming increasingly prevalent as a surveillance tool—drones.
What is a “Drone”?
The term “drone” is a broad term that refers to aircrafts that are not manned by a human pilot. Some drones are controlled by an operator on the ground using remote control. Other drones are controlled by on-board computers and do not require a human operator. Drones were initially developed primarily for military use. Recently, drones have also been utilized for a wide range of non-military uses, such as aerial surveying, filmmaking, law enforcement, search and rescue, commercial surveillance, scientific research, surveying, disaster relief, archaeology, and hobby and recreational use.
How Does Drone Surveillance Work?
Typically, drones are connected to some type of control system using a data link and a wireless connection. Drones can be outfitted with a wide variety of surveillance tools, including live video, infrared, and heat-sensing cameras. Drones can also contain Wi-Fi sensors or cell tower simulators (aka “stingrays”) that can be used to track locations of cell phones. Drones can even contain wireless devices capable of delivering spyware to a phone or computers.
Over the past few years, several new methods of surveillance have been developed. These new technologies create a high risk of abuse, and as they become more and more commonplace and affordable, that risk will only increase. Unfortunately, in the area of surveillance, the law has not always been able to keep up with the pace of technology. In many respects, the rules regarding the use of new surveillance technologies remain unclear. Consequently, the most effective way to guard against intrusions of privacy is to be aware of the expanding abilities of existing technology, because you never know when someone could be conducting surveillance.
ACLU Website: https://theyarewatching.org/technology/drones.
In previous posts, we have discussed how insurance companies will hire private investigators to conduct surveillance on disability claimants. In the next two posts, we will be discussing some modern surveillance technologies that most people are not very familiar with – “stingrays” and drones.
What is a “Stingray”?
A “stingray” is a cell site simulator that can be used to track the location of wireless phones, tablets, and computers—basically anything that uses a cell phone network.
How Does Stingray Surveillance Work?
A “stingray” imitates cell towers and picks up on unique signals sent out by individuals attempting to use the cell phone network. The unique signal sent out is sometimes referred to as an International Mobile Subscriber Identity (IMSI) and it consists of a 12 to 15 digit number.
Once the “stingray” connects to a device’s signal, it can collect information stored on the device. Usually the information collected is locational data, which is then used to track the movement of individual carrying the device.
Additionally, some “stingray” devices can intercept and extract usage information, such as call records, text messages, and Internet search history, from devices it connects to. Some “stingrays” are even able to intercept phone call conversations and deliver malicious software to personal devices.
Stay tuned for Part 2, where we will discuss drone surveillance.
ACLU Website: https://theyarewatching.org/technology/stingray.
A recent disability insurance case from the Southern District of California, Barbour v. Unum Life Insurance Company of America, 803 F. Supp. 2d 1135 (S.D. Cal. 2011), illustrates yet another way in which insurers sometimes improperly use surveillance to deny or terminate policyholders’ claims. In this instance, Unum (parent company of Paul Revere, Provident, and UnumProvident) actually based its decision to deny a claimant benefits on surveillance footage of the wrong person.
Patricia Barbour was insured under a group disability insurance plan through her job as a school principal. Ms. Barbour filed a claim under her policy due to “severe right quadrant abdominal pain—inflammation small intestines,” for which she had undergone two hernia surgeries, with serious complications. She and her physician explained to Unum that her condition restricted her from driving, walking or standing, and sitting for extended periods of time, and that she was totally disabled from performing hers or any other occupation. Ms. Barbour also reported that she used a cane, and that she needed her mother’s help for her daily activities.
As typically occurs, Ms. Barbour’s claims consultant at Unum retained a private investigator to perform three days of surveillance on Ms. Barbour.
Continue reading Unum Bases Its Decision to Deny Benefits on Surveillance of the Wrong Person
Whenever you file a claim for benefits with a disability insurance company, you will be asked to complete numerous forms. One of these forms is always a HIPAA-compliant Authorization. This form is titled differently depending on the insurer in question, for instance:
- Authorization to Obtain Information (Guardian/Berkshire)
- Authorization for Release and Disclosure of Health Related Information (Sun Life)
- Authorization (MetLife, Unum, Northwestern Mutual)
- Authorization for Release of Personal Health and Other Information (Principal)
- Authorization for Release of Personal Health-Related Information (MassMutual)
Claimants often sign the Authorization with little more than a quick glance, unaware of the broad power they are giving their insurer to investigate nearly every aspect of their lives. This may seem like an exaggeration, but take a look at this paragraph from an actual Authorization form required by one of the leading disability insurers for doctors and dentists.
Many claimants think that the Authorization simply allows the insurer to collect medical records. However, this Authorization, like those we typically see from other disability insurers, lets the company request all kinds of documents from all kinds of people and agencies. It also allows various company representatives to speak directly with numerous people in a claimant’s life. Let’s examine what you would authorize by agreeing to this one paragraph:
Continue reading Authorization Forms: What Information Are You Releasing to Your Disability Insurer?
As we have discussed in the past, surveillance is a tool commonly used by disability insurance companies to analyze – and often deny – legitimate disability claims. When surveillance is taken out of context or misconstrued, it can lead to unfair disability denials.
All too often, disability insurance companies expect people with disabilities to stay at home, in bed. What they fail to realize is that most doctors actually encourage disabled claimants to try some activities of daily living, light physical therapy, or social interaction. Just because a disabled person can eat chips at a restaurant with family doesn’t mean he can perform all of the duties of his former occupation. Nevertheless, disability insurers often try to get any physical activity on camera and use it as proof that the claimant is not disabled.
Many people filing for private disability wonder exactly when private investigators are watching them. After years of dealing with disability insurance detectives, we have recognized the five most popular times for surveillance of policyholders:
- During holidays. This is when policyholders are likely to be out of the house enjoying time with family and friends.
- On the claimant’s birthday. Just as on holidays, a disabled claimant is likely to push themselves to get out and enjoy the day.
- Over weekends. During weekends, insureds or more likely to attempt minor errands or go outside with family.
- Any time they have a chance of catching a claimant engaged in physical activity, based on information provided by the claimant on activity logs and in interviews. For example, if the claimant wrote on an activity log that he takes his dogs out in the morning, the private investigator will be there with a camera to document the insured walking in the yard.
- Near the end of fiscal quarters, when the insurance company is under pressure to save money by denying or terminating claims.
What your disability insurance company can do when it is investigating a claim largely depends on your specific circumstances and the language in your policy, but there are some common tactics that Arizona courts will often allow – and some they will not.
What the disability insurance company can do
- Audit your tax returns and billing records
- Review your medical files
- Use a private investigator to conduct video and photograph surveillance
- Look at your public Facebook profile and pictures
- Follow you on Twitter
- Order an Independent Medical Exam
- Have an insurance company doctor opine about your disability
- Ask for a Functional Capacity Evaluation
- Contact your treating physician
- Schedule face-to-face interviews with you
- Interview your family, friends, co-workers and employees
- Demand precise quantifications of your time spent in every professional activity pre- and post-disability
- Pay your claim under a reservation of rights
What the disability insurance company cannot do
- Impose requirements on you that are not in your policy
- Attempt to influence the opinions of independent medical examiners
- Misrepresent policy provisions
- Conduct abusive interviews
- Unfairly delay a decision on your claim
- Fail to conduct a timely, adequate investigation of your disability claim
- Destroy key documents
- Lie about actions taken on a claim
- Place their financial interests ahead of your contractual rights
- Force you to litigate by offering an unreasonably low lump-sum buyout
When it comes to claims investigation, disability insurance companies often skirt the limits of what they can legally do. If you think your insurer might be acting in bad faith, contact an attorney to protect your disability benefits.
Insurers often spy on insureds in an attempt to “catch” them appearing non-disabled. Traditionally, insurers have hired private investigators to videotape insureds in their daily routines. More recently, insurers have begun to use Facebook and other social media as a one-way mirror for electronically peeping into an insured’s private life. Old fashioned stakeouts and video surveillance are alive and well, however. Because it is so easy to misconstrue even a few seconds of video footage, all insureds need to be aware of the possibility for surveillance.
A recent article written by the insurance industry and aimed at insurers exposes the way insurers regard surveillance. Though the article cites a private investigator as saying that surveillance is the “unbiased documentation of a person’s activities,” the reality is anything but. Insurers will hire PIs to watch a claimant for days, and then purport that a single fifteen-second clip of the insured watering his outdoor plants, for example, is evidence of a fraudulent claim. They fail to understand the reality: Disability means unable to perform occupational duties, not absolute and perpetual helplessness. What does the insurer do with this video evidence? In their own words, “[impeach] the claimant, ultimately minimizing the value of his claim.”
Even if your insurer has obtained video surveillance, an experienced disability insurance attorney can place the video in its proper context—not just the five second clip that the insurer wants to show. Surveillance is another reason why it is important to consult with an attorney should you need to file a disability insurance claim.
Despite the U.S. not defaulting on its debt obligations, top-rated disability insurers have just had their credit ratings cut—in lockstep with S&P’s downgrade of U.S. sovereign debt. We previously reported that insurers were at risk of a downgrade, as no corporation can hold a higher credit rating than its sovereign. Now reports indicate that New York Life, Northwestern Mutual Life, and other previously AAA-rated corporations have been downgraded to AA+.
This downgrade is not expected to significantly impact the financial operations of insurers. While disability and life insurance companies have large holdings of government bonds, the past week has shown that U.S. bonds have not lost their attractiveness. Accordingly, insurers are expecting only minor financial effects from their downgrades. Perhaps they can now redirect their worries towards their claims management practices, where unfair denials can push insureds into bankruptcy.
The Access Board recently conducted a public briefing on proposed disabled accessibility guidelines for public rights-of-way. The proposed guidelines include provisions for pedestrian access routes (including width, grade and cross slope), curb ramps and blended transitions, street crossings, transit stops and shelters, street furniture, and on-street parking. Also noted were safety and accessibility issues for the disabled, including detectable warnings, accessible pedestrian signals, tabling of intersections, and multi-lane roundabouts.
Among the subjects discussed in the briefing and the subsequent question-and-answer session were concerns about surface roughness in rights-of-way for people who use wheeled mobility aids, visibility of parking meter visual displays for the visually-impaired, pay-by-phone access for the hearing-impaired, the required number of disabled-accessible public parking spaces, accessibility of pedestrian signals at intersections with audible tones for the hearing-impaired and vibrotactile indicators for the blind and visually-impaired, pedestrian-activated signals at roundabouts, and accessibility of color-based warning for the color blind.
The briefing was held on July 26, 2011, with a 120-day comment period and additional public hearings to follow. More detailed information on the statustics and issues discussed at the briefing is available at the U.S. Access Board’s website, along with links to the full text of the proposed guidelines, an overview of the rule, and reports from research conducted into some of the issues listed above.