We’ve talked before about how insurers often hire private investigators to follow and investigate claimants. While the purported goal is to find claimants who are “scamming the system” and faking a disability, investigators often employ invasive tactics in their attempts to gather videos and other information requested by insurers.
Unfortunately, all too often investigators go too far and claimants feel threatened or endangered by these investigators’ actions. The question then arises–at what point do insurance companies become legally liable for the actions of investigators that they hired? Can you sue your insurance company for invasion of privacy?
At least one court thinks so. In Dishman v. Unum Life Insurance Company of America, 269 F.3d 974 (9th Cir. 2001), the Court agreed with Dishman that he could sue Unum for tortious invasion of privacy committed by investigative firms hired by Unum. In this case, the investigative firms in question aggressively attempted to find out employment information on Dishman by (1) falsely claiming to be a bank loan officer; (2) telling neighbors and acquaintances that Dishman had volunteered to coach a basketball team and using that as a pretext to request background information about Dishman; (3) successfully obtaining personal credit card information and travel itineraries by impersonating Dishman; (4) falsely identifying themselves when they were caught photographing Dishman’s residence; and (5) repeatedly calling Dishman’s house and either hanging up or harassing the person who answered for information about Dishman.
Because the underlying Unum disability insurance policy was an ERISA policy, the Court assessed whether Dishman’s invasion of privacy claim (which was based on California law) was precluded by statutory language which states that ERISA “shall supersede any and all state laws insofar as they . . . relate to any employee benefit plan.” 29 U.S.C. Sec. 1144 (a). The Court, in its decision, went on to discuss a lack of consensus on this issue, but ultimately ruled that, in this particular instance, “[t]hough there is clearly some relationship between the conduct alleged and the administration of the plan, it is not enough of a relationship to warrant preemption” of state tort law, because Dishman’s “damages for invasion of privacy remain whether or not Unum ultimately pays his claim.” In other words, the Court explained, ERISA law does not provide Unum with blanket immunity for “garden variety tort[s] which only peripherally impact plan administration.”
It should be noted the Court in Dishman cautioned that there is no consensus regarding how far ERISA reaches, and not every disability is governed by ERISA, so not every court will necessarily reach the same conclusion as the Dishman court. This is a complicated area of the law, and whether or not you can sue your insurer for invasion of privacy will largely depend on the facts of the case, the type of policy you have, whether your jurisdiction recognizes an “invasion of privacy” cause of action, and the existing case law in your jurisdiction.
Information offered purely for general informational purposes and not intended to create an attorney-client relationship. Anyone reading this post should not act on any information contained herein without seeking professional counsel from an attorney.
In an ideal world, you’d receive a favorable decision and your first benefit check shortly after your policy’s elimination period is satisfied. Unfortunately, even wholly legitimate claims get scrutinized, questioned, delayed, and in some cases, denied. Below are a few common reasons benefit payments are delayed, particularly at the outset of a claim.
Improperly Completed/Partially Completed Forms
If your initial claim forms are missing information, unreadable, or incomplete, your insurer will likely issue additional forms for completion or use the missing information as an excuse to delay processing the claim. This applies to both the forms that you are required to complete and sign and the forms the insurer gives you to give to your doctor to fill out, so it is important to follow up with your doctor and make sure that all of the necessary forms are completed and returned in a timely fashion. If you do not carefully document your claim, and you do not promptly respond to requests for follow-up information, most insurers will delay making a claim decision until you provide them with the requested information.
Pending Requests for Information
At the outset of your claim, your insurer will require you to sign an authorization that allows them to request a wide range of information from a wide range of sources, including your doctors and employer. Oftentimes, the insurer will request information from these other sources (without telling you) and then will delay making a decision on your claim if any of these requests remain pending.
This means that even if you provide the insurance company with everything they requested from you, there may be other information that the company is waiting that is holding up the claims decision. Consequently, it’s important to ask the insurance company to find out if there are any pending requests, adn then follow up with your doctors, employers, etc. as needed to ensure that the information is provided.
It’s also important to keep tabs on the pending requests, to determine whether the scope of the insurer’s investigation is appropriate. An experienced disability attorney can advise you on whether a particular request for information is warranted under the circumstances of your particular claim.
Failure to Schedule Medical Examinations/Interviews
When you file a disability claim, insurers will almost always require that you participate in a detailed interview and/or undergo an independent medical examination (IME). While the stated point of these requests is to confirm or verify your disability, they can often be an attempt by your insurer to discredit your own doctor or medical records and generate fodder to deny your claim. Depending on the nature of your condition, your insurer might also request other types of interviews or exams—such as a functional capacity evaluation (FCE) or neuropsychological evaluation.
Some claimants (mistakenly) believe that if they keep putting off these exams, then they’ll be able to avoid the exams. However, most disability policies contain a provision that expressly requires the policyholder to submit to exams, and states that failure to do so is grounds for denying a claim or terminating benefits. So if you put off these exams, it’s only going to delay the company’s claim decision, and possibly result in a claim denial. However, keep in mind that going into a medical examination, IME, or interview unprepared can be just as bad for your claim, so it’s very important to prepare beforehand. Once again, an experienced disability attorney can advise you regarding the proper scope of an interview or IME, and can also be present for the interview or IME, if desired.
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.
As we have discussed in previous posts, musculoskeletal disorders are very common among dentists due to the repetitive movements and awkward static positions required to perform dental procedures. Unum, one of the largest private disability insurers in the United States, recently released statistics showing an increase in the filing of musculoskeletal disability claims over the past 10 years.
According to Unum’s internal statistics, long term disability claims related to musculoskeletal issues have risen approximately 33% over the past ten years, and long term disability claims related to joint disorders have risen approximately 22%. In that same period of time, short term disability claims for musculoskeletal issues have increased by 14%, and short term disability claims for joint disorders have risen 26%.
This trend may lead to Unum directing a greater degree of attention towards musculoskeletal claims as the volume of these claims continues to increase. Musculoskeletal claims are often targeted by insurance companies for denial or termination because they are easy to undercut—primarily due to the limitations of medical testing in this area. For instance, it can be difficult to definitively link a patient’s particular subjective symptoms to specific results on an MRI, and other tests, such as EMGs, are not always reliable indicators of the symptoms that a patient is actually experiencing. Insurers also typically conduct surveillance on individuals with neck and back problems in an effort to collect footage they can use to deny or terminate the claim. While such footage is usually taken out of context, it can be very difficult to convince the insurance company (or a jury) to reverse a claim denial once the insurer has obtained photos or videos of activities that appear inconsistent with the insured’s disability.
As we have noted in a previous post, Unum no longer sells individual disability insurance policies, so its disability insurance related income is now limited to the premiums being collected on existing policies. Because benefit denials and termination are the primary ways insurers like Unum can continue to profit from a closed block of business, and musculoskeletal claims are on the rise, Unum may begin subjecting this type of claim to even higher scrutiny.
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.
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.
In this series, we’re taking a look at some of the most popular disability insurance companies for doctors. See our profiles of MassMutual and MetLife. Northwestern Mutual is another disability insurer that specifically markets its policies to physicians and dentists.
In 2014, the company insured 476,000 people through 727,000 individual disability policies. Northwestern Mutual prides itself on paying more dividends that its competitors. In order to do that, of course, it must maintain consistently high profit levels.
Company: Northwestern Mutual Life Insurance Company.
Location: Milwaukee, Wisconsin.
Associated Entities: Northwestern Long Term Care Insurance Co., Northwestern Mutual Investment Services, LLC, Northwestern Mutual Wealth Management Co., The Frank Russell Co.
Assets: $217.1 billion in 2014.
Notable Policy Features: Northwestern Mutual sells policies with an “own occupation” definition of total disability. However, these policies are often only truly “own occupation” for a limited amount of time, after which they become any occupation policies (only providing benefits if you are unable to work in any job) or “no work” own occupation policies (only providing benefits if you are unable to perform your job duties and are not working in another job).
For instance, a Northwestern Mutual policy might include the following definition:
Total Disability. Until the end of the Initial Period [defined elsewhere as 60 months of benefits], the Insured is totally disabled when is unable to perform the principal duties of his occupation. After the Initial Period [i.e., 60 months], the Insured is totally disabled when he is unable to perform the principal duties of his occupation and is not gainfully employed in any occupation.
In order to make sure a Northwestern Mutual disability insurance policy keeps the own occupation definition for as long as you hold the policy, you may need to purchase an additional benefit rider.
Read more about Northwestern Mutual’s interpretation of its own occupation policies.
Claims Management Approach: Some of the claims strategies that Northwestern Mutual is known to use include conducting in-home field interviews on top of third-party surveillance, hiring its own medical consultants to review claimants’ records and opine on whether or not they are disabled, and demanding that claimants (especially those with mental conditions) undergo “independent” medical examinations (IMEs) with providers of Northwestern Mutual’s choosing.
These profiles are based on our opinions and experience. Additional source(s): Northwestern Mutual’s 2013 Annual Report; Northwestern Mutual Fact Sheet 2014; Forbes.com.
Today we’re profiling another popular insurer that issues private disability policies to dentists and physicians: MetLife.
Company: Metropolitan Life Insurance Company, a.k.a. MetLife.
Location: New York, NY.
Associated Entities: MetLife, Inc. (parent company), General American Life Insurance Company, New England Life Insurance Company.
Assets: MetLife, Inc. held over $885 billion in assets as of May 2014, according to Forbes.
Notable Policy Features: One thing to watch out for in MetLife policies is a limitation on benefits for mental disorders and/or substance use disorder. Under the Limited Monthly Disorders and/or Substance Use Disorders provision of some MetLife policies, policyholders are only entitled to a total of 24 months of benefits for any mental or substance abuse disorder, such as depression, panic disorder, post-traumatic stress disorder (PTSD), bipolar disorder, and alcohol abuse or dependency. The 24 month limitation is cumulative. So, for example, if you have depression that disables you for 23 months, then start suffering from disabling alcohol dependency later in your life, you would only have one month of benefits still available to you.
Claims Management Approach: In its 2013 Annual Report, MetLife, Inc. reported that “unfavorable morbidity experience in our individual income disability business resulted in a $6 million decrease in operating earnings.” In other words, in 2013, more private disability insurance policyholders experienced disabling illnesses or injuries than in years before, and that hurt MetLife’s profits. In these situations, where an insurer is facing increased liability for benefit payments, we often see that insurer put additional resources towards managing claims. In this way, the insurer can spend extra time and effort looking for ways to deny or terminate claims, with the goal of limiting its liability.
In our experience, one way that MetLife attempts to dispose of claims as quickly as possible is by ordering surveillance early on in the claim. While some companies will wait until they have received more information before starting surveillance, MetLife has started following and videotaping claimants within weeks of the claim being filed.
With respect to its medical investigation, we have found that MetLife often follows a similar strategy to MassMutual’s. The insurer will often attempt to have its own medical personnel schedule “peer-to-peer” telephone consultations with claimants’ treating physicians, with the aim of catching the treating physician off guard and persuading them into saying their patient isn’t disabled. However, we have found that, in certain circumstances, MetLife can be amenable to submitting medical questions to the treating doctor in writing instead. That way, the treating doctor can more carefully consider the issues, without feeling pressured or put on the spot.
These profiles are based on our opinions and experience. Additional source(s): MetLife’s 2013 Annual Report; Forbes.com
At some point after you’ve filed a disability insurance claim, your carrier may contact you to arrange a field interview. Also called a “field visit,” a field interview is when a disability insurer hires a representative to come meet with you face-to-face to talk about your benefit claim. Most times, the company will ask that you meet the field representative at your own home or office.
Your claims analyst will probably tell you that the field interview is just a way to get to know you better, or to help the company gain a better understanding of your claim. What the claims analyst won’t tell you are the real reasons why insurance companies put so much time and effort into planning in-person field interviews, such as:
- To take your picture so that a private investigator will recognize you during surveillance.
- To find out what your house and/or office looks like to further aid in surveillance.
- To look inside your house and see if you’ve been doing a lot of housework, paperwork, cooking for yourself, etc., all of which (according to the insurance company) can mean you’re able to work in your own occupation.
- To see if you look like you’re in pain, if you can sit down for a long period of time, or if you can walk without any gait abnormalities.
- To see if you look like you might have current monthly income from sources other than your occupation (i.e., if you have a nice car, a big house, a boat, etc.).
- To drop in and try to interview your spouse, former business partners, office manager, or neighbors.
- To try and get you to relax and open up, or to catch you off guard so that you give information the company can use against you.
In our next post, we’ll discuss what you can expect during the field interview itself.
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.
Pima County Medical Society Publishes Ed Comitz and Karla Thompson’s Article Re Surveillance in Disability Insurance Claims
The January 2013 edition of Sombrero, the publication of the Pima County Medical Society, features an article by Comitz | Beethe’s disability insurance attorneys, Edward O. Comitz and Karla Baker Thompson. The article, “Surveillance Misuse in Claims Investigations,” reviews some of the ways in which evolving technology has led to overly intrusive surveillance of claimants by insurance companies.
Among the surveillance techniques being utilized are stakeout operations, tailing (sometimes using a “decoy” investigator), pretexting (obtaining your personal information under false pretenses), and GPS and cell phone tracking. For example, some private investigators use a stingray, which is a cell phone tracking device that operates as a miniature cellular tower from inside of the PI’s vehicle. The device enables an investigator to connect to a claimant’s cell phone, even when it’s not in use, and, after taking measurements of the phone’s signal strength, triangulate its location. Since most people tend to carry their cell phones at all times, the device then allows the investigator to track the insured’s movements remotely.
The law surrounding some of these intrusive surveillance techniques, which have been made possible by modern technology, is not yet settled, and it is important that anyone on claim with their disability insurance carrier remain vigilant to the possibility of surveillance at all times, regardless of whether a human being is conducting the surveillance. Long gone are the days when surveillance was only conducted by someone with a camera sitting in a car outside an insured’s home.