Filing for Disability Insurance Benefits
In the Wake of Coronavirus:
What Every Physician Should Know

Physicians across the country are experiencing heightened levels of anxiety and stress in the face of the coronavirus pandemic. They are bracing for a spike in cases that the U.S. healthcare system will not be prepared to face, and some are already running out of supplies. Others are working in hospitals that are short-staffed, tending to both sick and anxious patients. And many physicians are balancing their desire to help patients with the risk of becoming a potential sources of contagion to their loved ones and community.

One doctor described this unique type of stress as “pre-traumatic stress disorder” as doctors brace for an outbreak that seems inevitable.[1] Another doctor observed “[m]ost physicians have never seen this level of angst and anxiety in their careers.” [2]

These unprecedented stressors can have a significant impact on physicians already dealing with mental health issues like depression, anxiety, panic disorder, or similar conditions. Physicians currently are experiencing increased distress and worry over physician shortages[3], shortages of supplies[4], and fears of becoming ill and/or quarantined themselves.

Organizational psychologist Adam Grant, in a piece in The New York Times, also recently explained that over half of doctors experience “burnout,” and risks of stress/burnout become even “more acute” during a pandemic because medical professionals are “braving high disease exposure, long hours and inadequate resources.”[5]

Even for those physicians not on the front lines, this pandemic has drastically impacted their bottom lines and work schedules as they have to postpone procedures, and potentially cut back on hours or close their practices entirely to preserve personal protective equipment (PPE). However, as we’ve noted in prior posts, unemployment programs typically do not provide high enough benefits for doctors to meet their obligations and expenses.[6]

In light of all of this uncertainty, many physicians have been reaching out to us to see if it is possible to file disability claims under their own-occupation disability policies. We’ve answered the most common questions we’ve been receiving from doctors, below, and will be updating this post throughout the coronavirus crisis as we receive more questions from physicians.

Each physician’s claim for disability benefits involves different facts, disabling conditions, policy requirements, insurance companies, etc. While our attorneys are making an effort to share general knowledge with the medical community and answer physician’s questions about the impact of the coronavirus, this not a substitute for individualized advice from an experienced disability insurance lawyer. If you would like to speak with our attorneys and have them take an in-depth look at your particular situation, please feel free to contact us directly.

 

Can I File A Claim for “Burnout”?

It depends on what you mean by “burnout,” and whether you have an actual, underlying mental health condition that has been treated by a mental health professional. Most disability policies require you to provide evidence of either a “sickness” or an “injury” that prevents you from being able to perform the material and substantial duties of your occupation.

If you file a claim based on increased stress levels and fatigue and label it “burnout,” we’ve seen insurers seek to minimize these things as “just part of the job,” determine that this does not qualify as a disabling condition and deny the claim. Some policies also specifically exclude coverage for mental health conditions, or limit benefits for mental health claims to a shorter time frame (usually around 24 months). So the first step is to determine whether your policy provides coverage for mental health claims.

If your policy covers mental health claims and you have a diagnosed condition, it is possible to file a disability claim; however, mental health claims are also some of the most challenging disability claims. They receive a high level of scrutiny, and can be difficult to prove up since most mental health conditions are diagnosed based upon subjective symptoms that are reported to your treating providers.

As a result, insurer’s medical consultants and in-house doctors often challenge and second-guess the diagnoses and treatment plans submitted by your providers. Oftentimes, an insurer will suggest more aggressive treatment because they want you to go back to work so they can save money. But if work is a trigger for you, that may not be in the best interest of your mental health.

Additionally, while some policies expressly require you to pursue treatment that would lead to a “return to work” and/or “maximum medical improvement,” other policies simply require you to be under the “regular” care of a provider, or require you to receive “appropriate” care. Where your policy falls on this spectrum typically informs how aggressive an insurer will be about challenging your treatment, and if there is a disagreement over whether a certain treatment is required by your policy, it may require the intervention of a disability insurance attorney and/or court involvement to resolve.

Our office has dealt with these issues before and has helped numerous professionals successfully navigate their mental health claims. While it can be a difficult process, it is possible to collect, if you have a legitimate mental health condition, an understanding of how your policy works and supporting documentation of your condition.

For a more detailed discussion of the challenges physician’s face when filing mental health claims, see our article in MD Magazine, “Can You Collect Disability Benefits For Burnout?

Each physician’s claim for disability benefits involves different facts, disabling conditions, policy requirements, insurance companies, etc. While our attorneys are making an effort to share general knowledge with the medical community and answer physician’s questions about the impact of the coronavirus, this not a substitute for individualized advice from an experienced disability insurance lawyer. If you would like to speak with our attorneys and have them take an in-depth look at your particular situation, please feel free to contact us directly.

 

I Am a High-Risk Individual. Can I File a Disability Claim if My Office Environment Places My Health at Risk?

This is an interesting legal question that has not been fully developed in the context of a national pandemic. Most legal questions are resolved by consulting precedent and since, in many ways, the current COVID-19/coronavirus in unprecedented (particularly in the last 30 or so years when private disability insurance policies for professionals have been the most prominent) this is a open question that would likely require a disability lawyer and court involvement to resolve.

The strength of this sort of claim would largely depend on the physician’s specialty, the underlying policy, and the law of the jurisdiction in question. While most disability policies do not directly address what happens if there is a national epidemic, like the coronavirus, some policies do address situations that could be pointed to by analogy.

For example, some physician policies have riders that state that the company will recognize disability if the physician contracts a sickness or disease that could place the physician’s patients at risk (for instance, if a physician tests positive for HIV and there is a risk that the virus could be transmitted to patients in the course of the physician’s normal duties). If a physician has coronavirus, one could argue that practicing similarly places patients at risk and arguably falls under this sort of rider.

There is a fundamental difference, however, because the coronavirus is not something that is normally expected to be contagious for an extended period of time. If it is something that passes in a few weeks, then it is unlikely that any benefits would be due, because most policies require the disability to last for a specific elimination period before benefits are payable, and those waiting periods usually last at least three months (or longer).

Looking at it from another perspective, some courts have held that a physician should be considered disabled if the physician’s work environment places the physician’s health at risk. For example, if a physician were diagnosed with a heart condition and the stress and demands of practicing could cause a heart attack, a court might recognize such a condition to be totally disabling. By analogy, if a physician’s health were at risk due to coronavirus, one could argue that the physician is disabled from practicing for as long as that risk is present.

Again, these are untested waters, and there is no guarantee that a court would approve such a disability. Most likely, if the risk were just the general risk of contracting coronavirus, we expect that the insurer would deny the claim and a court would most likely uphold the denial. However, if there is an underlying health condition that places the physician at heightened risk of mortality if exposed to coronavirus (for example, the physician had a compromised immune system due to another condition, like leukemia) courts may be more sympathetic and more willing to recognize disability.

Each physician’s claim for disability benefits involves different facts, disabling conditions, policy requirements, insurance companies, etc. While our attorneys are making an effort to share general knowledge with the medical community and answer physician’s questions about the impact of the coronavirus, this not a substitute for individualized advice from an experienced disability insurance lawyer. If you would like to speak with our attorneys and have them take an in-depth look at your particular situation, please feel free to contact us directly.

 

I Can’t Focus and Am Afraid I’m Going to Hurt Somebody. Can I File a Claim?

If you are a physician and your ability to focus and think critically is compromised, you may qualify for disability benefits. However, mental health claims are often subject to policy exclusions and limitations, and are some of the most difficult claims to make.

For frame of reference, our physician clients who have filed claims for anxiety typically have a history of panic attacks that were non-responsive to treatment. Their specialties required a high degree of attention to detail and critical thinking, and often there is an underlying event or specific trigger that is work-related. Additionally, they take medication for their condition and that medication impacts their ability to think clearly and concentrate to a degree that it is not possible for them to safely practice their specialty when they are taking the medication.

So, in sum, whether you can file a claim depends on factors such as the severity of your condition, whether you have a history of receiving treatment for the condition, whether the anxiety is triggered by something that is work/occupation related,  whether you are taking medication for the condition, and the nature of your specialty and job duties.

See also Can I File A Claim for “Burnout”?

Each physician’s claim for disability benefits involves different facts, disabling conditions, policy requirements, insurance companies, etc. While our attorneys are making an effort to share general knowledge with the medical community and answer physician’s questions about the impact of the coronavirus, this not a substitute for individualized advice from an experienced disability insurance lawyer. If you would like to speak with our attorneys and have them take an in-depth look at your particular situation, please feel free to contact us directly.

 

I Have Had to Isolate from My Family Because I’m Afraid to Get them Sick. Can I File a Claim for Depression?

If you are a physician suffering from severe depression, to the point where you would be putting patients at risk by practicing, you may be able to file a disability claim, as long as your policy provides coverage for mental health conditions.

As with a disability claim based upon anxiety/panic disorder, whether you can file a claim depends on factors such as the severity of your condition, whether you have a history of receiving treatment for the condition, whether the depression is triggered by something that is work/occupation related, whether you are taking medication for the condition, and the nature of your specialty and job duties.

See also Can I File A Claim for “Burnout”?

Each physician’s claim for disability benefits involves different facts, disabling conditions, policy requirements, insurance companies, etc. While our attorneys are making an effort to share general knowledge with the medical community and answer physician’s questions about the impact of the coronavirus, this not a substitute for individualized advice from an experienced disability insurance lawyer. If you would like to speak with our attorneys and have them take an in-depth look at your particular situation, please feel free to contact us directly.

References:

[1] Alison Block, Doctors and nurses are already feeling the psychic shock of treating the coronavirus, The Washington Post, March 18, 2020, https://www.washingtonpost.com/outlook/2020/03/18/doctors-nurses-are-already-feeling-psychic-shock-treating-coronavirus/.

[2] Karen Weise, Doctors Fear Bringing Cornavirus Home: ‘I am Sort of a Pariah in My Family’, The New York Times, March 16, 2020 (updated March 17, 2020), https://www.nytimes.com/2020/03/16/us/coronavirus-doctors-nurses.html.

[3] Stephanie Innes, Number of hospital beds, doctors in Arizona are low compared with rest of U.S., Arizona Republic, March 15, 2020 (updated March 16, 2020), https://www.azcentral.com/story/news/local/arizona-health/2020/03/15/number-hospital-beds-doctors-arizona-low-compared-rest-u-s/5038216002/.

[4] As an example, The Utah Department of Health, according to a news article in The Salt Lake Tribune, announced on March 24th a halt to nonurgent medical, dental, and veterinary procedures in order to preserve protective gear for health professionals. The order currently runs through April 25th. See Sean P. Means, Lee Davidson, Bethany Rodgers, Utah increases COVID-19 testing, halts non-urgent care – but some doctors urge stay-at-home orders, The Salt Lake Tribune, March 24, 2020, https://www.sltrib.com/news/2020/03/24/utah-increases-covid/.

[5] Adam Grant, Burnout Isn’t Just in Your Head. It’s in Your Circumstances, The New York Times, March 19, 2020, https://www.nytimes.com/2020/03/19/smarter-living/coronavirus-emotional-support.html.

[6] For example, the maximum weekly unemployment benefit insurance in Utah is $580, with a total maximum benefit of $15,080.00.

See Unemployment Insurance Benefit Schedule, January 2020, Workforce Services Unemployment Insurance, https://jobs.utah.gov/ui/UIShared/PDFs/BenefitCalculation.pdf.

 

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Filing for Disability Insurance Benefits
In the Wake of Coronavirus:
What Every Dentist Should Know

Now that the COVID-19/Coronavirus epidemic has reached the U.S. and spread throughout the country with no end in sight, dentists are being forced to face the reality that they may have to go without income for weeks, or maybe even months.

Some states, like California and New York are ordering dentists (and everyone else) to close their offices and shelter-in-place. And the American Dental Association (ADA) has called upon dentists to postpone elective procedures for the next three weeks.

In Utah, many dental offices have closed or drastically cut back on seeing patients following the ADA’s statement and the Utah Dental Association’s warning that dentists are “one of the highest risk categories for transmission and contraction of the virus, with many routine dental procedures potentially transmitting the virus.”

Similarly, in Arizona, Governor Doug Ducey has discontinued “all non-essential or elective surgeries, including elective dental surgeries, that utilize personal protective equipment or ventilators” in an effort to preserve PPE for an anticipated spike in the pandemic. Dr. Jennifer Enos, president of the Arizona Dental Association, has also issued a statement asking “dentists to donate available supplies of personal protective equipment, such as medical gloves and masks,” which effectively would mean that dentists would need to close their offices until those supplies become generally available again.

Given all of this uncertainty, our attorneys have been receiving a host of questions from dentists who are trying to determine if they can file a disability insurance claim and/or how the coronavirus developments impact their disability claim/benefits. So, for the next several weeks our disability attorneys are going to dedicate our blog to answering dentist’s questions about coronavirus and disability claims under their private, own-occupation policies, in an effort to help the dental community be more informed on these important and complex legal/disability industry issues.

Each dentist’s claim for disability benefits involves different facts, disabling conditions, policy requirements, insurance companies, etc. While our attorneys are making an effort to share general knowledge with the dental community and answer dentists’ questions about the impact of the coronavirus, this not a substitute for individualized advice from an experienced disability insurance lawyer. If you would like to speak with our attorneys and have them take an in-depth look at your particular situation, please feel free to contact us directly

Sources:

ADA Calls Upon Dentists to Postpone Elective Procedures, American Dental Association, March 16, 2020, https://www.ada.org/en/press-room/news-releases/2020-archives/march/ada-calls-upon-dentists-to-postpone-elective-procedures.

UPDATE on COVID-19 , Arizona Board of Dental Examiners, March 19, 2020, https://dentalboard.az.gov/.

The Latest on COVID-19 from AzDA, Arizona Dental Association, https://www.azda.org/news-publications/the-latest-on-covid-19.

Utah Dental Association, https://www.uda.org/.

Hannah Tiede, Dental surgeons postpone elective procedures to combat COVID-19 spread, KOLD, March 18, 2020, https://www.kold.com/2020/03/19/dental-surgeons-limit-elective-procedures-combat-covid-spread/.

Hannah Miller, Dentists reduce hours, postpone elective procedures to combat coronavirus, CNBC, March 19, 2020, https://www.cnbc.com/2020/03/19/coronavirus-dentists-reduce-hours-postpone-elective-procedures.html.

Paighten Harkins, Some Utah dentists are closing because of coronavirus. Others don’t think they can., The Salt Lake Tribune, published March 17, 2020 (updated March 18, 2020), https://www.sltrib.com/news/2020/03/17/some-utah-dentists-are/.

 

Do I Lose My Disability Coverage If I’m Not Working?

It depends. Some disability policies (most often employer policies or group/association policies) have a requirement that you must remain “actively at work” or working “full-time” in order to stay eligible for coverage.

While sometimes “full-time” is defined, other policies, like the ADA/Great-West policy, have an hourly work requirement that must be met to maintain eligibility. For example, you may need to work 20 hours a week, or 30 hours a week, depending on the disability policy.

Many times, there are exceptions that can be utilized to maintain eligibility, but it may require further action, like obtaining a formal leave of absence from your employer or getting approval for FMLA leave. However, these are things that need to be done proactively, to preserve eligibility.

Additionally, if you lose eligibility and regain it later (say, after the national coronavirus epidemic has passed), this can re-set the coverage date and preexisting condition provisions under some policies. As a result, your claim could be denied on the basis that your disabling condition pre-dates the new coverage date, even if you technically regain the ability to file a claim under the policy upon returning to work.

There are certain legal principles that will work in tandem with the provisions of your policy, and that may help you, especially in circumstance like coronavirus pandemic. However, the administrators of your policy may or may not believe that it is in their best interest to voluntarily assist you, notwithstanding these laws.

Action Step: Locate your disability policies and become familiar with the requirements for maintaining eligibility. If necessary, take additional steps to preserve your eligibility during periods where you are not able to meet the normal hourly work requirements. Talk to a disability attorney if you have questions about ways to maintain your eligibility during the coronavirus crisis.

Each dentist’s claim for disability benefits involves different facts, disabling conditions, policy requirements, insurance companies, etc. While our attorneys are making an effort to share general knowledge with the dental community and answer dentists’ questions about the impact of the coronavirus, this not a substitute for individualized advice from an experienced disability insurance lawyer. If you would like to speak with our attorneys and have them take an in-depth look at your particular situation, please feel free to contact us directly.

 

Can I File a Disability Claim if My Office Has Already Closed?

Yes, but your claim will likely receive heightened scrutiny—particularly if you worked normal hours seeing roughly the same number of dental patients up until your office was closed due to coronavirus.

Many disability policies require you to prove that your disability (or loss of income resulting from disability) was caused “solely” by an underlying sickness/injury, and not by other secondary causes. Other policies require you to show a “demonstrated relationship” between the disabling condition and your inability to practice dentistry. And some newer disability policies even exclude disabilities if they are “caused or contributed to” by something other than your underlying medical condition. If your disability policy contains such language, your insurer may deny or reduce your benefits on the grounds that your loss of income/inability to practice is due to causes other than your disabling condition.

Additionally, if you can’t work because you were forced to close your office or give away your supplies, or your employer sent you home and you can’t work for other dentists because of a non-compete agreement, your insurer may also try to use that as a basis to deny your claim.

This is called the “legal disability” defense and is usually used in situations where a dentist has legally lost the ability to practice—for example, if the dentist lost his/her license. Courts have addressed this differently in different jurisdictions, but generally the defense—where recognized—allows the insurer to avoid payment if it can show that you lost the legal ability to practice before you became disabled.

If your disability insurance company raises this legal defense, it typically results in a “chicken v. egg” scenario where your medical records and the timeline is parsed to determine what came first. And, while it is certainly possible to prevail, these claims may require court involvement to resolve—particularly if care is not taken at the outset to ensure that the timeline and facts are properly submitted with the original notice of claim.

Action Step: If you are considering filing a disability claim during the national coronavirus epidemic, recognize that your claim will be subjected to close scrutiny and make sure that you carefully review and double-check your responses when submitting your proof of loss to ensure that the timeline is accurate. If you are concerned about your insurer asserting a “legal disability” defense, speak with an experienced disability lawyer about your situation.

Each dentist’s claim for disability benefits involves different facts, disabling conditions, policy requirements, insurance companies, etc. While our attorneys are making an effort to share general knowledge with the dental community and answer dentists’ questions about the impact of the coronavirus, this not a substitute for individualized advice from an experienced disability insurance lawyer. If you would like to speak with our attorneys and have them take an in-depth look at your particular situation, please feel free to contact us directly.

 

If I Close My Office Will That Hurt My Chances of Using My Disability Policy?

It could. See Can I File a Disability Claim if My Office Has Already Closed?

 

If I Change the Volume and/or Types of Procedures I’m Doing, Will that Hurt My Chances of Using My Disability Policy?

It could. While most policies sold to dentist are “own occupation” policies, the term “occupation” is a malleable term. Typically, “occupation” is defined as the “occupation or occupations” you were engaged in immediately prior to your date of disability.

As we’ve explained in our prior articles, this means that you can modify your occupation and hurt your chances of collecting if you change the types of procedures you are doing. If you reduce your hours, stop doing certain dental procedures and/or focus more on office administration and are not able to resume your normal schedule before filing a claim, your disability insurance company may determine your occupation is a “part-time dentist” and “part-time administrator,” determine that you can still do office administration, and refuse to pay total disability benefits.

Action Step: If you think that you may need to file a disability claim in the future, carefully weigh the risk of modifying your occupation against the risk of your future claim being evaluated based upon a modified occupation. If appropriate, consider filing a disability claim prior to pursuing non-clinical options, but discuss this first with an experienced disability insurance lawyer.

Each dentist’s claim for disability benefits involves different facts, disabling conditions, policy requirements, insurance companies, etc. While our attorneys are making an effort to share general knowledge with the dental community and answer dentists’ questions about the impact of the coronavirus, this not a substitute for individualized advice from an experienced disability insurance lawyer. If you would like to speak with our attorneys and have them take an in-depth look at your particular situation, please feel free to contact us directly.

 

How Do I File a Disability Claim if I Can’t Get in to See My Doctor?

Most disability insurance policies require you to produce proof of loss within a limited time frame and state that the company can limit or deny providing you with disability benefits if you do not provide the information within that time frame. However, there are legal rules that allow for delay if it would be impossible or unreasonable for you to produce the proof within the required time frame.

These same exceptions also may apply in instances where you are already on claim and the disability insurance company is requiring an update from your doctor. Whether these exceptions are available to you will depend on what your policy says and the law in your jurisdiction.  An experienced disability attorney can help you request an extension if you need it.

Action Step. Speak with an experienced disability lawyer to assess whether it would be appropriate to file a claim and start the process prior to obtaining your doctor’s statement. If you are already on claim, ask for an extension and if the insurance company refuses to grant one, speak with a disability lawyer.

Each dentist’s claim for disability benefits involves different facts, disabling conditions, policy requirements, insurance companies, etc. While our attorneys are making an effort to share general knowledge with the dental community and answer dentists’ questions about the impact of the coronavirus, this not a substitute for individualized advice from an experienced disability insurance lawyer. If you would like to speak with our attorneys and have them take an in-depth look at your particular situation, please feel free to contact us directly.

 

If I file a Partial Disability Claim How Do They Calculate Loss of Income? What If My Income Goes Down Because of Coronavirus?

Each disability insurance policy has a different formula for calculating prior income and loss of income. Some policies look to the year or 24 months immediately prior to date the disability claim was filed, other policies use averages over a several year period, and some policies give dentists the option to pick between the two.

Once your prior income is determined, it is typically averaged out on a monthly basis and compared to your actual monthly income to determine the loss of income, expressed as a percentage. If you meet a certain percentage loss, usually 15% or 20%, you are eligible for benefits.

If your disability policy averages out prior income over a period of several years, the impact on prior income will likely not be that significant if the drop in income dips for a few months and then recovers. However, if the policy looks to the period immediately prior to filing the claim, a series of a few months with little to no income could have a more drastic impact on how prior income is calculated. And if your prior income remains low when you ultimately file a partial disability claim, it becomes much harder to meet the threshold loss of income to qualify for partial disability benefits.

See also Can I File a Disability Claim if My Office Has Already Closed?

Action Step: If you are considering filing a partial disability claim, review your policy’s partial disability provision and become familiar with how “prior income” and “loss of income” are calculated under your policy. If you had a drop in income related a disabling condition prior to the loss of income from the coronavirus, and you are able to back that up with documentation, evaluate whether it would be appropriate under your policy to file partial disability claim based upon that loss of income.

Each dentist’s claim for disability benefits involves different facts, disabling conditions, policy requirements, insurance companies, etc. While our attorneys are making an effort to share general knowledge with the dental community and answer dentists’ questions about the impact of the coronavirus, this not a substitute for individualized advice from an experienced disability insurance lawyer. If you would like to speak with our attorneys and have them take an in-depth look at your particular situation, please feel free to contact us directly.

 

Should I Try to File for Unemployment or Get Another Job Until I Can Go Back to Dentistry?

If you try to find another non-clinical job, you risk modifying your occupation. See If I Change the Volume and/or Types of Procedures I’m Doing Will that Hurt My Chances of Using My Disability Policy?

While unemployment benefits vary from state to state, barring significant changes to the programs, it is unlikely that these sorts of benefits will allow dentists to meet their expenses if dentists are forced to close their offices for extended periods of time. For example, in Arizona, the maximum weekly benefit is $240, or roughly $960/month. Additionally, there is a chance that the various programs will not be able to address the spike in people filing for benefits. In just Arizona alone, the non-partisan Economic Policy Institute released a new study showing that Arizona will lose more than 100,000 jobs by this summer related to COVID-19, including 4.2% of private sector jobs, which will place significant strain on the unemployment benefit program.

Obviously, you should not file a disability claim if you do not have a medical condition that limits you from practicing. However, if you are a dentist with a slowly progressive condition, like degenerative disc disease or an essential tremor and you have been considering filing a disability claim, your disability claim may be a better option than seeking unemployment benefits. While  there are some new considerations when filing a disability claim in this environment, your policy probably provides greater financial protection than unemployment benefits, if you have a legitimate disability claim.

Action Step: Learn more about your state’s unemployment benefits and how they compare to your disability policy’s benefits. If appropriate, consider filing a disability claim.

Each dentist’s claim for disability benefits involves different facts, disabling conditions, policy requirements, insurance companies, etc. While our attorneys are making an effort to share general knowledge with the dental community and answer dentists’ questions about the impact of the coronavirus, this not a substitute for individualized advice from an experienced disability insurance lawyer. If you would like to speak with our attorneys and have them take an in-depth look at your particular situation, please feel free to contact us directly

Sources:

Eligibility for Unemployment Insurance Benefits – How much will my weekly benefit amount be? https://des.az.gov/services/employment/unemployment-individual/eligibility-unemployment-insurance-benefits.

Steve Irvin, Analysis: Arizona will face huge job losses because of coronavirus, ABC 15, March 19, 2020
https://www.abc15.com/news/state/analysis-arizona-will-face-huge-job-losses-because-of-coronavirus.

Arizona increases access to unemployment benefits, moves tax deadline due to coronavirus, 12 News, March 20, 2020 (updated March 21, 2020)
https://www.12news.com/article/news/health/coronavirus/az-unemployment-benefits-tax-deadline-covid-19/75-d8a15335-2560-460c-89f2-1bdf7f52f412.

The Latest on COVID-19 from AzDA, Arizona Dental Association, https://www.azda.org/news-publications/the-latest-on-covid-19.

 

I Filed a Disability Insurance Claim Months Ago and Still Do Not Have a Decision – What Is Taking So Long?

While it is not unusual for a disability insurance company to take several months to make a benefits decision, it is important (and particularly important now) to be following up so that your disability claim is not placed on the back burner, particularly when insurers may be operating with limited staff.

If you feel your claim decision is being delayed, you have submitted all requested information, and you are in need of income for a particular reason (like the coronavirus) disability insurers will sometimes make advance payments under a “reservation of rights.” However, this money can be clawed back, so it is important to carefully evaluate whether this sort of thing is appropriate, and it may require the involvement of an experienced disability attorney to secure the advance payment.

Action Step: Be proactive and follow-up with your disability insurance company to determine when they will be making a benefits decision. If you feel that a decision is being wrongfully delayed, speak with a disability lawyer.

Each dentist’s claim for disability benefits involves different facts, disabling conditions, policy requirements, insurance companies, etc. While our attorneys are making an effort to share general knowledge with the dental community and answer dentists’ questions about the impact of the coronavirus, this not a substitute for individualized advice from an experienced disability insurance lawyer. If you would like to speak with our attorneys and have them take an in-depth look at your particular situation, please feel free to contact us directly.

 

I Am Stuck Out of the Country and Can’t Get Back – Can My Disability Insurance Company Cut Off My Disability Benefits?

Some policies, particularly newer policies, contain “foreign residency” provisions that require you to be in the U.S. (or sometimes, the U.S., Canada or Mexico) in order to remain eligible to receive disability benefits. Oftentimes, the disability policy will allow for a certain period of time that you can be out of the country and then cut off benefits if you do not return.

At the same time, these provisions do not say what happens if your failure to return is due to something that is not your fault—like the coronavirus, quarantines or travel bans. Consequently, this is a difficult question that would likely hinge on the legal interpretation of the exact language in your policy, the law of your jurisdiction, and the court who is asked to resolve the issue, if the insurer is not willing to waive the terms of the contract or come to a compromise.

Action Step: Review your policy to determine whether it has a foreign residency provision. If it does and you are concerned that you may not be able to return to the U.S. in time to comply with its provisions, contact a disability lawyer.

Each dentist’s claim for disability benefits involves different facts, disabling conditions, policy requirements, insurance companies, etc. While our attorneys are making an effort to share general knowledge with the dental community and answer dentists’ questions about the impact of the coronavirus, this not a substitute for individualized advice from an experienced disability insurance lawyer. If you would like to speak with our attorneys and have them take an in-depth look at your particular situation, please feel free to contact us directly.

 

My Insurer Says I Have to Undergo an IME But I Don’t Want to Get Coronavirus

Most policies contain provisions that require you to submit to medical examinations and allow the company to terminate benefits if you do not attend. Some policies only allow for a limited type of exams, while others contain provisions that go on for several paragraphs outlining the several types of tests and exams that the company can require. So the first step is assessing whether the exam that is being required is appropriate under the terms of your policy.

If so, then the second question is whether you should be forced to put your health at risk to secure or maintain your disability benefits. Again, this is something that may require the intervention of an experienced disability attorney to resolve, as it will likely initially require an in-depth assessment of whether the insurer can obtain the relevant information by other means. Other options include negotiating a postponement of the IME or, if the insurer is particularly aggressive, taking the insurer to court to determine whether these provisions are enforceable under these particular circumstances.

Action Step: If you are concerned about your insurer requiring an in-person IME, speak with a disability lawyer and have him or her evaluate whether the IME is required under your policy and whether there are other means to provide the requested information.

Each dentist’s claim for disability benefits involves different facts, disabling conditions, policy requirements, insurance companies, etc. While our attorneys are making an effort to share general knowledge with the dental community and answer dentists’ questions about the impact of the coronavirus, this not a substitute for individualized advice from an experienced disability insurance lawyer. If you would like to speak with our attorneys and have them take an in-depth look at your particular situation, please feel free to contact us directly.

 

My Disability Insurance Company Wants to Send A Field Examiner to My House – Do I Have to Let Them In?

See My Insurer Says I Have to Undergo an IME But I Don’t Want to Get Coronavirus.

Most policies do require provisions that require you to submit to in-person examinations. However, there is also typically a “reasonableness” requirement. An experienced disability attorney can evaluate your claim to determine whether an examination is appropriate under the circumstance and/or whether there are alternative methods of obtaining the relevant information that do not place your health at risk.

Action Step: If you are concerned about your insurer requiring and in-person field interview, speak with a disability lawyer and have him or her evaluate whether the field exam is required under your policy and whether there are other means to provide the requested information.

Each dentist’s claim for disability benefits involves different facts, disabling conditions, policy requirements, insurance companies, etc. While our attorneys are making an effort to share general knowledge with the dental community and answer dentists’ questions about the impact of the coronavirus, this not a substitute for individualized advice from an experienced disability insurance lawyer. If you would like to speak with our attorneys and have them take an in-depth look at your particular situation, please feel free to contact us directly.

 

I Can’t Get My Doctor to Complete My Disability Paperwork – What Do I Do?

See How Do I File a Disability Claim if I Can’t Get in to See My Doctor to get Claim Forms Completed?

Under certain circumstances it may be possible to request extensions and/or get the insurer to agree to accept proof of loss in other formats, such as medical records, test results, etc. However, it is important to be wary of the disability insurance company offering to do peer-to-peer calls with your doctor in lieu of reports.

Action Step. Ask for an extension and if the insurance company refuses to grant one, speak with a disability lawyer.

Each dentist’s claim for disability benefits involves different facts, disabling conditions, policy requirements, insurance companies, etc. While our attorneys are making an effort to share general knowledge with the dental community and answer dentists’ questions about the impact of the coronavirus, this not a substitute for individualized advice from an experienced disability insurance lawyer. If you would like to speak with our attorneys and have them take an in-depth look at your particular situation, please feel free to contact us directly.

 

I’ve Been On Claim With Reduced Reporting and Now My Disability Insurance Company Wants to Do an Interview/IME – Is My Claim Being Targeted for Denial?

Historically, disability insurers have engaged in bad faith more frequently when they faced sustained periods of financial loss.  Additionally, during the last recession, we noted that many companies began revisiting claims that had been ongoing for years, and subjecting them to in-depths reviews to see if there had been any improvement or if they could find any basis for termination.

At the very least, disability claims—particularly high-dollar claims filed by dentists—are going to be receiving heightened scrutiny during this time. Field examiners, IME doctors, and other third parties who work with insurance companies, as well as the companies’ own analysts and in-house doctors conducting medical records reviews, will all be under substantial pressure to keep their jobs by saving costs for the insurance company.

Action Step: If you feel that your disability insurance company is improperly targeting your claim for denial, an experienced disability insurance attorney can help you assess your particular situation and determine whether the insurer’s action is appropriate.

Each dentist’s claim for disability benefits involves different facts, disabling conditions, policy requirements, insurance companies, etc. While our attorneys are making an effort to share general knowledge with the dental community and answer dentists’ questions about the impact of the coronavirus, this not a substitute for individualized advice from an experienced disability insurance lawyer. If you would like to speak with our attorneys and have them take an in-depth look at your particular situation, please feel free to contact us directly

 

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How the Disability Claims Process Works, in a Nutshell

People often ask us “what is the claims process like?” and/or “what should I expect if I file a disability claim?” Obviously, each claim is unique, and how your particular claim will play out largely depends upon a wide range of factors, including your profession, your particular insurance company, the nature of your condition, when your policies were issued, and what the key definitions in your policy say, among other things. However, there are some basic aspects of the process that you should be aware of if you are considering filing a disability claim or wondering how the disability claims process works.

Obtaining the Claim Forms

The process for obtaining claim forms varies from company to company. Some companies provide forms online, and other companies require you to call in to request the claim forms. Recently, we have noted that several companies are starting to conduct information-gathering, recorded interviews when you call in for claim forms.

If you are not aware that this could be a possibility, you can end up being caught off-guard without a clear understanding of what your policies say or what the company can and cannot ask for when investigating your claim. Because of this, we advise that professionals at least speak with an experienced disability attorney before requesting claim forms so that, at a minimum, they understand how the process works before they make a call that can initiate a recorded interview.

Completing the Claim Forms

Typically, the initial packet of claim forms will contain several different forms, including paperwork that you must fill out, paperwork for your treating doctor, and oftentimes paperwork that must be completed by your employer. As the claim progresses, the company will require additional paperwork, which at the outset of a claim typically consists of a monthly progress report that must be completed by you and a monthly attending physician’s statement from your doctor.

Records Requests

After you submit the initial claim forms, your insurer will likely send a follow-up letter requesting additional records and documents. For professionals, this usually includes financial documents (such as tax returns), production codes, profit and loss statements, employment agreements, and practice sale documents, if applicable, among other things. Whether these requests are appropriate depends on the terms of your policy and nature of your claim (for example, whether you are filing a total disability claim, as opposed to a partial disability claim).

Interviews

In addition to the initial phone interview, the company may hire a field examiner to interview you in-person. This interview typically takes place at your attorney’s office, or at your home if you are not represented by an attorney. The company may also seek to interview your former co-workers and/or employers about your prior job duties, and may seek to interview your friends or family members about the impact your condition has had on your day-to-day life. Whether these types of interviews are appropriate depends on the particular issues at play in your claim.

Examinations

Almost every disability policy contains a provision that allows the company to have you examined as part of the claims investigation. However, different policies allow for different types of examinations. Some policies (typically older policies) only expressly provide for “physical” or “medical” examinations, while newer policies typically provide for a host of different types of exams, including mental exams, vocational evaluations, rehabilitation evaluations, functional capacity evaluations, and/or neuropsychological testing, in addition to physical exams. Again, whether an exam is appropriate depends on the particular facts of your case.

Surveillance

Many companies conduct surveillance at some point during the claim. This can include a review of your online presence (social media accounts, public record searches, etc.).

Elimination Period

Most disability policies require you to satisfy the policy’s elimination period before any benefits are due. Each policy will have a specific procedure for satisfying the elimination period, but in most instances you can only satisfy the elimination during periods of disability. So, put differently, even if your claim is approved at the outset, there will still be a period of time (e.g. 3 months) that you must be disabled before any benefits are due. This is important to keep in mind because many claimants expect to receive benefits right off the bat and don’t realize that, even in the ideal scenario where a claim is approved right away, it will be several months before they receive the first benefit payment.

This is not an exhaustive list of everything that can happen in the context of a disability claim, but it is a broad overview of some of the major aspects of the claims process. Some of the items in the list, such as the elimination period, apply to virtually every claim, while the likelihood of other items in the list occurring (such as medical exams) depends on the facts of your particular case.

Because of this, if you’re thinking about filing a claim, it is always a good idea to have someone who is familiar with the claims process (like an experienced disability insurance attorney) evaluate your specific situation, so that you can have a better sense of what to expect in your particular circumstances.



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.  Disability 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 disability 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 disability 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 disability 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 disability 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 disability 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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Can You Sue Your Insurance Company for Invasion of Privacy?

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.

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New Methods of Surveillance: Part 2 – Drones

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.

Conclusion

Over the past few years, several new methods of surveillance have been developed.  These new technologies create a high risk of abuse by disability insurance companies, 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.

References:

ACLU Website: https://theyarewatching.org/technology/drones.

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New Methods of Surveillance: Part 1 – “Stingrays”

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.

References:

ACLU Website: https://theyarewatching.org/technology/stingray.

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Why Does My Insurer Want to
Conduct a Field Interview?

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 disability 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.

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Unum Bases Its Decision to Deny Benefits on Surveillance of the Wrong Person

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”



Insurers’ Law Firms Using New Technology
to Track Your Social Media Activity

As many disability insurance policyholders already know, insurance companies regularly look to claimants’ social media accounts (Facebook, LinkedIn, Twitter, Instagram, etc.) for information to help justify a claim denial.

What you may not know is just how important those social media searches are to the insurance company’s lawyers whenever a claim goes to litigation.

At a recent disability insurance law conference attended by attorneys for both claimants and insurers, one insurance company defense attorney spoke about just how crucial it can be to find supposedly damaging information about claimants on social media.  “I don’t know how we defended these cases before Facebook,” she said.  “It’s a great resource.  We’ve found pictures of claimants dancing . . . all kinds of things!”

Your insurance company’s lawyers are so eager to use social media to find information that can make you look bad that they are now shelling out extra money on software specifically designed to monitor and archive everything you say and do on social media.  This trend is explained in further detail in the ABA Journal’s recent article: 6 tools to help firms track social media.  While the article states that some firms are using the tools to monitor their own clients, there is no doubt that they are being used to monitor their clients’ legal adversaries.

The information that can be gleaned using this type of software is unsettling.  One example from the article:

“For instance, if a post says something like ‘I’m having breakfast at this great restaurant’ and there is a picture of what they are eating . . . the software should also be able to show the GPS coordinates, other people they are with, information about the restaurant, etc., so that the whole story is presented, not just the text.”

What this means for claimants is that they must be extra vigilant about what kind of image they are projecting on social media.  Everyone, no matter how disabled, has moments of joy in life.  But if those joyful moments are posted on social media, they can easily be misconstrued, especially without context.

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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.



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.



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.

Our firm has 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.



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 triangulate 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.


Surveillance of Disability Claimants: When Are Private Investigators Watching?

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 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 activitybased 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.


Spy Cam Placed on Disabled Man’s Neighbor’s Property by Insurance Company

Dana Fredericks, who filed a disability claim at with Accident Fund Insurance Company of America due to his back problems, says that his insurer placed a spy camera on the private property of his neighbor in order to conduct surveillance on him.  The outraged neighbor, Ron Guzanek, reports that private investigators pretended to be cable workers and cut a clearing in his hedgerow while installing the sizable camera.   Guzanek, who says the camera was placed on his private property on a private road without his consent, notified the Oakland County Sheriff’s Department.

The spy camera—which had short-circuited and was billowing smoke—was removed by the fire department and remains in the custody of the Sheriff’s Department, despite the assertions of Accident Fund Insurance Company of America that the company and its private investigators had complied with all laws.  The insurance company is conducting an internal review into the matter.

While not all insurance companies will go to illegal lengths in order to spy on their insureds, this story is a reminder to anyone with a disability claim to be aware that at any time your insurance company may be conducting surveillance upon your activities.

Local television coverage of the Addison Township, Michigan spy cam incident can be viewed here.



Disability Claim Investigation:
What Can My Insurance Company Do?

What your disability insurance company can do when it is investigating a claim for disability benefits 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

  1. Audit your tax returns and billing records
  2. Review your medical files
  3. Use a private investigator to conduct video and photograph surveillance
  4. Look at your public Facebook profile and pictures
  5. Follow you on Twitter
  6. Order an Independent Medical Exam
  7. Have an insurance company doctor opine about your disability
  8. Ask for a Functional Capacity Evaluation
  9. Contact your treating physician
  10. Schedule face-to-face interviews with you
  11. Interview your family, friends, co-workers and employees
  12. Demand precise quantifications of your time spent in every professional activity pre- and post-disability
  13. Pay your claim under a reservation of rights

What the disability insurance company cannot do

  1. Impose requirements on you that are not in your policy
  2. Attempt to influence the opinions of independent medical examiners
  3. Misrepresent policy provisions
  4. Conduct abusive interviews
  5. Unfairly delay a decision on your claim
  6. Fail to conduct a timely, adequate investigation of your disability claim
  7. Destroy key documents
  8. Lie about actions taken on a claim
  9. Place their financial interests ahead of your contractual rights
  10. 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 a disability insurance attorney to protect your disability benefits.



An Inside Look at Insurer Surveillance

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, disability 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. Disability 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.





Look Who’s Lurking Around Your Facebook Page: Your Insurance Company!

The detailed information many people reveal about themselves on popular social networking sites such as Facebook, Twitter, and MySpace has caught the attention of the insurance companies. Insureds with disability claims should be alert to their insurance company potentially using this investigation/surveillance tool and should think twice before posting photos and information about their daily lives that could be misconstrued and used against them. Marilyn Lewis has written an interesting article on Insure.com about the future of insurance companies investigating their insureds online not only in order to determine rates for home, auto and life insurance, but to conduct surveillance on insureds with claims.