Chicago employees with long term disability insurance coverage often ask me whether they should expect to be under surveillance. Most disability claims are not put under surveillance. But I see it arise in cases often enough that the cases where it occurs have some things in common. If you fall in one of these categories, the surveillance may get real consideration in an ERISA 502(a) legal action.
- You Overstated Your Limitations The number one reason I see for individuals placed under surveillance is they overstated limitations to the insurer. Don’t exaggerate what you cannot do. To avoid any exaggeration, put some thought into the forms you complete. Insurers frequently evaluate if you can perform sedentary work, which requires lifting and carrying up to 10 pounds occasionally. A good at home test is to try lifting and carrying a full gallon of milk. Lift it from floor to waist, and from waist up. Insurers often ask if you can handle a gall of milk for that reason, so give it a try. And don’t say you can’t lift anything at all unless you truly cannot lift anything.
- You Post Photos and an Active Life on Social MediaDisability can be difficult, and you may not want all your friends, family, and colleagues perceiving you as “disabled.” Getting out and socializing may even be helpful to your treatment, or your doctor may even advise you to do so. But be careful with what you post online. Portraying yourself online like nothing has changed will draw scrutiny from an insurer. It doesn’t matter whether your online posting reflects reality or not. The point is the insurer sees it as evidence to use against you.
- You Engage in Other Work Without Disclosing ItThis is where insurers get the most mileage. If you are doing some work while claiming disability benefits, you have to disclose it to the insurer. When you have a disability claim, the worst thing you can ever think is “how would they know?” They always have a way of knowing. Doing work you don’t disclose is the surest way to get your claim denied, terminated, or lose your case in court. That happened recently to a claimant in Hocheiser v. Liberty Mutual Insurance Co., No. 17-6096, 2021 WL 672660 (D.N.J. Feb. 22, 2021). Hocheiser received benefits for a bit. Hocheiser asked the claim adjuster about the policy’s partial disability benefit, but then disclaimed he was doing any work. Some background investigation led Liberty Mutual to believe Hocheiser was starting up a new business. It placed him under surveillance and obtained evidence that was inconsistent with what he told Liberty. Liberty ultimately won the case.
The lesson learned is to be open and transparent with the insurer. I always advise my clients to treat the insurer like a customer. You want the insurer to pay you, just like a business wants a customer to pay it. You have nothing to lose by taking the high road, but something to lose by not doing so. If you are concerned about your claim being under surveillance, call an experienced ERISA long term disability lawyer today.