In an ideal world, you’d receive a favorable decision and your first benefit check shortly after your disability insurance policy’s elimination period is satisfied. Unfortunately, even wholly legitimate disability claims get scrutinized, questioned, delayed, and in some cases, denied. Below are a few common reasons disability benefit payments are delayed, particularly at the outset of a disability claim.
Improperly Completed/Partially Completed Forms
If your initial claim forms are missing information, unreadable, or incomplete, your disability insurer will likely issue additional forms for completion or use the missing information as an excuse to delay processing the disability 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 disability 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 disability insurance 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 disability 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 disability 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 disability claim. Depending on the nature of your condition, your disability 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 disability 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.
As a dentist or physician, 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 disability 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 disability 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.
Disability 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. Disability 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 disability 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 disability insurers.
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.
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.
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 companies often will hire a private investigator to aid in terminating disability insurance claims. Ostensibly, the purpose of a private investigator is to expose dishonest individuals of fraudulent disability insurance claims. A private investigator may even advertise as a “Disability Insurance Fraud Specialist.” All too often, however, insurance companies and their investigators are not seeking to expose fraud, but to manufacture it. They produce “evidence” only to aid in denying disability insurance claims—even wholly legitimate ones. They do so because there is a strong financial incentive to deny disability insurance claims.
At Comitz | Beethe, we have dealt with these insurance companies and their private investigators time and again. We know how they operate and how to prepare our clients. We have developed a short list of basic information about private investigators so you can know what to expect:
- When are they watching? In a previous post, we noted the five most popular times for disability surveillance: (1) holidays, (2) birthdays, (3) weekends, (4) activities claimant listed in insurance company’s activity log; and (5) near the end of fiscal quarters.
- Who are they? Typically, private investigators are just as the name indicates – private people from private companies. Disability insurance companies contract with these private companies to conduct surveillance on disability claimants.
- What are their surveillance methods? Particular tactics will vary depending upon the private investigator, the disability insurance company and the disability claimant. However, many methods are common across the board. Basically, the private investigator will inconspicuously follow a disabled claimant with a video-capturing device as the disabled claimant undergoes day-to-day activities. If the private investigator has difficulty locating the disabled claimant, the investigator may use different tactics, such as pretexting, stake-outs or tracking devices, to locate and track the claimant. Our last blog post describes these other tactics in detail.
The private investigation industry has a reputation for its shady practices. At Comitz | Beethe, we uncover and expose private investigators’ objectionable “tracking” methods to protect our clients. We hold insurance companies and their private investigators accountable under the law.
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.
May is Disability Insurance Awareness Month — A Good Time To Ask Yourself If You Can Collect on Your Disability Insurance Policy
May is Disability Insurance Awareness Month. While the insurance industry likes to increase awareness of purchasing disability insurance, medical professionals who long ago purchased disability insurance and have been paying premiums on disability policies for many years may opt to instead raise their awareness of the obstacles they are likely to encounter should they ever need to make a claim on their disability insurance policy. The article below by disability insurance attorney Edward O. Comitz provides some food for thought.
DISABILITY INSURANCE: CAN YOU COLLECT UNDER YOUR POLICY?
By: Edward O. Comitz, Esq.
You have practiced medicine for your entire career. Your spouse and children rely on you, and you have numerous financial obligations. The stress and trauma of a disability can cause you significant problems. To protect yourself in case of total or partial disability, you have purchased disability insurance.
Unfortunately, you suffer an injury or become so ill that you cannot continue your practice, and you then file a claim with your insurance agent. Of course, you expect it to be honored. Instead, shortly thereafter, you are contacted by an insurance adjuster, not your agent. Unlike your agent, the insurance adjuster is hostile; the questions he asks imply that you are malingering. You try to be cooperative, providing the insurance adjuster with the additional information he requests, but again your claim is denied. Adding insult to injury, you learn from the adjuster that the insurance company has secretly videotaped your activities and, based on the tapes, believes that you are not disabled at all. Dumbfounded by the insurance company’s response, you ask yourself if there is anything that you can do to make the insurance company pay the benefits it promised. The answer is yes.
Typically, the type of policy that medical and dental professionals purchase is what is known as an “own occupation policy.” Such policies provide compensation following a disability that prevents the insured (the person who purchased the policy) from performing the particular duties of his or her profession. Thus, the insured may be entitled to benefits even if he or she could in fact perform work of a different nature. For example, if a surgeon purchases an “own occupation policy” and severely injures his hand, but could nevertheless perform some or all of the duties of a general practitioner, the surgeon is considered disabled under an “own occupation policy” and entitled to benefits.
Disability provisions greatly vary in the language used, and coverage is often circumscribed and restricted by qualifying words and phrases. Accordingly, each policy of insurance must be individually reviewed to determine whether a particular claim is covered. What may appear to be an “own occupation policy” could in fact be an “occupational policy” if “total disability” is defined to include the insured’s inability to perform “all” duties or “every” duty pertaining to the insured’s occupation. In such a case, the insured may not be entitled to benefits if he or she can perform comparable employment for which the person is suited by education, experience and physical condition. Continue reading “May is Disability Insurance Awareness Month — A Good Time To Ask Yourself If You Can Collect on Your Disability Insurance Policy”
Answer: Individuals with neck and back pain.
Musculoskeletal disorders make up 23 percent of new disability claims each year, says the Council for Disability Awareness, an insurance industry trade group. You can expect extra scrutiny if you file a claim for disability benefits, says Arizona disability insurance attorney Ed Comitz. The challenge with musculoskeletal claims is that there may be little objective evidence to verify the pain. Most insurers conduct surveillance on individuals with neck and back problems, attempting to portray them in the worst light notwithstanding the varying nature and severity of pain.
Claim Analytics, a provider of predictive modeling solutions to the insurance industry, published the results of its “2010 Long Term Disability Benchmarking Report.” The results show significantly varying results (a 22% difference) when it comes to dealing with claims,especially those based on back injuries. According to Claim Analytics, this reflects on the claim management practices employed by each carrier, and specifically how different carriers treat back pain.
Good Morning America recently reported on The Hartford going too far in their surveillance of some people with disability insurance claims, then unfairly cutting off benefits based on the video surveillance.
Read the full article here: The Insurer Who Spied On Me