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Stop Watching meInsurance surveillance is routinely conducted by private disability insurers to “catch” insureds exceeding medical restrictions and limitations thereby demonstrating work capacity.

After all, what qualifies insureds for disability benefits is the definition of disability that states “unable [or limited] from performing material and substantial duties.” And, insurers are very carefully watching!

While insureds are well aware of the possibility of surveillance they do not often realize that the simple act of conducting surveillance is often enough to support claim denials. Or, so goes the story from the insurer’s point of view. Surveillance is always misrepresented regardless of whether insureds were “doing something wrong” or not.

The old “walking the dog” scenario is used by many insurers to allege that “walking a dog” indicates work capacity when in fact a 15 minute walk up the street is only a 15 minute walk up the street. While insurers typically conduct three-day surveillances, normal activity of daily living self-care, although permitted, is used against insureds when they drive to the pharmacy to pick up medications, or go to their doctors’ offices.

Incapacity for work, via a medical disability defined in a Plan or contract does not mean that insureds need to be housebound, in bed, with a comforter up to their nose, although insurance companies want that to be the case. When observed, insurers presume all insureds, must at least show some semblance of being disabled all of the time.

Years ago I had a Unum client who was so frustrated with multiple surveillances that he finally asked his children to fish out old granny’s wheelchair from the basement. He then sat in the wheelchair, complete with huge white bandages around his head, and had his kids wheel him down the driveway. Halfway down, he yelled out and fell out of the wheelchair and couldn’t get up. Amidst screams of pain his children had to pick him up off of the driveway so he could stumble back into the wheelchair. He actually put on quite a show!

When he told me what he’d done I didn’t support it, of course, because it wasn’t truthful. But, the incident did make a point. Surveillance is only credible when it is unknown to the insured. Insureds can put on any type of show they want when they are aware surveillance is taking place.

Insureds aren’t the only schemers either. A few years ago, another ER physician client reported to me that sometime in the middle of the night he was awakened by a loud bang in front of his apartment building. Living on the 5th floor with a balcony, he looked below to find a grayish looking van and what appeared to be a human body next to a bicycle on the side of the road. The driver was calling for help and shouting for the physician to come below and help the victim.

The physician considered. As a DCS client, he was well aware of what to look for. To him, the event seemed staged and unreal. He yelled down to the driver that he would call 911 and get some help. After several more minutes of panicked persuasion, it became obvious to the driver that the ER physician was not going to join him at the scene.

To the doctor’s amazement, when the sirens of the summoned ambulance could be heard, the driver quickly threw open the back of the van, tossed the dummy and bicycle into the back and took off. Obviously, the surveillance was staged to bring the ER physician to an emergency situation proving work capacity for his own occupation.

Finally, there are times when insureds themselves do not use good sense. There was a report that a young woman, on a ladder, with alleged back problems was observed putting up Christmas lights on a 25 foot tree in front of her house. Another report observed an insured putting a new roof on his house and nailing tiles with a huge hammer. A very unwise insured actually started to clean up his yard after a hurricane with a chain saw and was seen sawing up trees, carrying wood, and pulling branches off of his house. (How would a surveillance team be able to show up a half hour after a hurricane?)

Playing golf is always a bad idea, and yet insureds will complete 18 holes and not think a thing about it. Golf is a game that requires: standing, walking, pushing overhead, bending, concentration, strategic thinking, exposure to elements, fine finger manipulation, physical stamina, and just over all fitness. And yet, one of the most popular questions I’m asked is if insureds can play golf and still receive disability and SSDI. Ludicrous!

What insureds often forget, too, is that Murphy’s Law is always in play……”Anything that can go wrong, will go wrong, and at the worst possible time.” This idea that “I won’t get caught just this one time”, doesn’t always play out. The first time you get on a plane to see family in the middle of the Grand Canyon for two minutes is when the surveillance team shows up.

Insurance surveillance must always be viewed in its proper perspective. The majority of three-day surveillances are NOT evidences of full-time work capacity, although insurers might try to say that it is. Short surveillances do not capture physical capacity for full-time work, and clearly citing a “walking the dog” scenario is pretty desperate on the part of insureds. “Walking dogs” is very rarely cited by treating physicians as a medical restriction, and insurers know that.

Insureds who exercise good sense when they know they are being observed fare best. Unfortunately, surveillance will remain a common occurrence as long as claims exist, but at least insureds can act accordingly, but without the wheelchair of course!

 

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Surveillance1It’s hard to know exactly what is, and what isn’t legal these days. Or, if things ARE illegal who will be prosecuted and what “over the top” really means. How is it possible to say what surveillance is legally allowed, when no one is held accountable to play by the rules?

Reports have been coming in to DCS that The Hartford is engaging in what is described to me as “underhanded illegal surveillance.” I’ve known for quite some time that The Hartford stepped up its investigative tactics assigning at least three people to each claim, one of which is a private investigator. While at one time The Hartford only employed 16 investigators, I’m told there are now over 60.

I also know that Hartford’s claims handlers, like Unum’s, are programmed with a fraudulent malingering mindset that presumes everyone with a claim is out for secondary gain. One of Hartford’s claims handlers told me, “You just don’t know how many people are trying to cheat us. Most of them are no better than thieves.”

Unum’s perspective is a bit different said one Unum manager on her FB page, “Insureds are like Slinkys, they aren’t worth very much, but everyone likes to see one tumble-down the stairs every now and then.” Attitudes like these are programmed into company employees who know it’s either their employer’s way or the highway.

A few sources are reporting Amazon’s Alexa boxes and other home appliances like TV screens, computers, and phones provide the means for spying, not just by insurance companies, but by government agencies, and social media itself. The problem isn’t just that insurance companies are spying on their insureds, it’s that the American public is spied on by nearly every imaginable source.

Specifically, insureds contacting me are often harassed by The Hartford’s surveillance to the point of being frantic, mistrustful, and extremely worried about their benefits. Apparently, The Hartford’s methods are so frequently imposed, some of their own claimants describe Hartford’s activity as “stalking.” The difference between surveillance and stalking is that insurance stalking is an attempt to terrorize insureds to the point that it is likely they would withdraw their claims – an easy way out for The Hartford.

In most other claims areas, The Hartford’s claims management process is very much like Unum’s. Since most of the company’s executive management hailed from Unum’s old Dickinson & Holt subsidiary, claims practices between the two companies remained basically the same. However, in recent years The Hartford made decisions to engage in surveillance to the point of insured harassment.

Surveillance technology today unleashed a tremendous boon in the frequency and nature of “listening in”, “tailing”, and “spying” on unsuspecting insureds, or even insureds who KNOW they are being tapped, but don’t care. I am not an expert on the technology of surveillance, but it makes sense to me that insurance investigators will use every means “to catch you” even if it could be considered illegal in some states.

Clearly, The Hartford is “way out there” with its investigation of claims. Those with  Hartford Plans might want to take notice and protect themselves from invasions of privacy that are likely to be on the horizon.

And please, everyone should know by now that social media is the largest insurance spy network in the world. Those on claim should NOT be posting family information anywhere on the Net if they plan to keep their claims.

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Christmas Grinch“And he puzzled and puzzled ’till his puzzler was sore. Then the Grinch thought of something he hadn’t before. What if Christmas, he thought, doesn’t come from a store. What if Christmas, perhaps, means a little bit more.”

Here we are within three weeks of end of the year profitability for the big Robber Barons. Lurking behind evergreen bushes, trees and hedges, surveillance investigators are out in full gear hoping to find evidences of “inconsistency of report” as many people push the envelope by exceeding reported medical restrictions and limitations.

It seems like the Grinch is waiting for insureds to do something wrong so the “who stole Christmas” becomes a giant corporation hoping to make profit in 2018 at your expense. This is just a friendly reminder that investigative teams are ready and waiting to gather information that can be interpreted as adverse to you.

This includes, by the way, Facebook, Twitter, My Space, LinkedIn pages that are susceptible to scrutiny by those looking to deny claims. Hacking into social media is now more the norm of surveillance rather than sitting in front of your house, hanging out the window with a video recorder.

Please be aware of the possibility of Grinch surveillance and act accordingly.

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Evil SantaHere is an email I received from one of my clients. She wanted to share her experience, feelings and emotions about being watched and surveilled.

Tonight, I was followed. I thought I would share it with you to give your readers insight on how it can happen, and how it makes a person feel.

I live in a middle upper-class neighborhood that is not easy to sit around the corner and do surveillance. At the entrance to my neighborhood, as I was leaving, I noticed a small white car sitting there on the side of the road. The only reason I thought it was odd, is because it looked like it had decal stickers with three numbers and the word “news” something like 632 NEWS. The sticker or decals clearly looked like something someone could buy at Walmart and stick on their car. It also did not advertise any of the local news stations company names that obviously I would know.

Still, I didn’t think too much of it because we have many college students that come home and attempt to use models from our neighborhood or experiences people have had from our neighborhood for their news or art. I probably got about 5 miles down the road when my daughter, who was at dance practice, called and said she had the wrong pants at dance. So I turned around and went home. I got my daughters pants and proceeded to leave again.

I came up to another neighborhood and noticed that same car was sitting at my building entrance and observed it quickly do a U-turn almost causing an accident trying to turn around so fast once the car saw me. Now, the surveillance is starting to get my attention. And no, I wasn’t being paranoid because I wasn’t even thinking about that. Those of us  with long-term disability insurance all have paranoia to some degree, but I truly didn’t think it was something I had to worry about at this time.

You see, I have been home all day taking two naps, eating my healthy meals, and conserving energy so that I could attend my sons first 45 minute flag football game.  I was very excited because he was so excited and couldn’t wait for me to see him. Now even though this has my attention I’m still not too concerned until I pull into EarthFare  to meet my mother and hand off my daughters pants for her to take to my daughter’s dance class. Guess who’s 4 or 5 cars down.  The same car!

When I left EarthFare, I decided to take a back road that I knew would dead end and had lots of construction. I then took multiple different routes until I finally ended up in the parking lot of my son’s flag football game. The car continued to follow me the whole time. To be honest with you, I took all those alternate routes because it took quite a few jags and turns before I could believe I was actually being surveilled.

It’s in the evening and for some reason, I think many of us don’t expect it in the evening. So I get out and start walking towards my sons flag football game. I then stopped and waited.  Guess who finally came through the gate – the person I saw in the white car. He was wearing a sports like shirt with blue, and I think gray or white, or maybe all three colors that almost looked like a coaches type shirt. He had a big camera bag and a hard clip board, trying very hard to look like a news reporter.

I would go a little ways and he would go a little ways then stop and quickly act like he was writing something as he was staring at all the different flag football games. I made eye contact with him a few times as I was texting my husband to please hurry up and come meet me. My husband arrived.  I purposely walked past this man and told him to please not follow me anymore and I proceeded to continue to my son‘s flag football game on field four. He continued to follow me. I would walk 3 steps and stop, he would walk 3 steps and stop. Now it was very obvious. I purposely pointed at him and my husband who was fed up turned around and started rushing towards him to confront him. I’ve never seen anyone move so fast. He quickly ran away and disappeared. I am sure he just hid somewhere else to watch me. I wasn’t going to let it completely ruin my excitement to watch my son’s first game. I sat in a chair and focused on him.

I was gone from my house for approximately 1 to 1 1/2 hours. I did nothing out of my restrictions or anything that I’ve ever claimed I couldn’t do so the peeper investigator did not get anything on me. Nor will he ever.


I want to thank my client for sharing this experience with me. Here we are heading into the holidays and claimants are forced to deal with being followed by their insurers making them feel guilty, uncomfortable and angry at disturbing their privacy. Most investigators today are pushy, arrogant and often do not care if they are confronted.

In the past, investigators slid down in their cars trying not to be seen, but today they stand right in front of you with video cameras daring you to get into a car and drive away. The simplest of things, like watching a son’s football game, is turned into a peep show for the purpose of denying legitimate, payable benefits.

I do know that Unum’s surveillance investigators are out in full force. Please do not exceed your reported medical restrictions and limitations.

Thanks again to my client for sharing with others. I do welcome emails from others who wish to share their thoughts and case stories. I will post them, if you send them to me in an email.


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Surveillance1Unum’s attempts to discredit and deny claims based on surveillance are finally seen as not credible evidence for terminating claims. A good case in point is Fleming vs. Unum Life Insurance Company, SACV 17-01576-CJC, November 20, 2018.

In this case, an attorney by the name of Fleming was involved in a serious car accident and very badly injured. Following the accident, she was forced to scale down her hours, and ultimately became unable to work in 2005 when she applied for and was granted LTD benefits. Unum paid her benefits for 11 years before terminating her coverage in 2016 on the basis on “inconsistency of report” for 15 minutes of video surveillance.

From the opinion:

“Despite Fleming’s voluminous file of medical records cataloguing her chronic pain and physical restrictions, Unum and its reviewing physicians chose to assign immense weight to 15 minutes of surveillance footage. Although Fleming can be seen for only brief periods from a distance, each of the individuals Unum designated to review both Fleming’s claim and her appeal characterize this footage as clear proof of the “inconsistencies” between Fleming’s actual functional capacity and her treating physicians’ reports.

The Court assigns little to no weight to this surveillance footage. First, it is unclear from the record whether Unum’s reviewers actually watched the surveillance footage or only read the accompanying report issued by the surveillance company. That report, which selectively describes Fleming’s actions, fails to paint a complete picture. For instance, the report notes that Fleming lifted a trash bag “upwards over her shoulders” and “bent at the waist” twice. (AR 1984.) Indeed, Fleming can be seen throwing a trash bag away and bending near her vehicle to place a cooler in the backseat. But these actions, even in light of Fleming’s medical conditions, are unremarkable. As Fleming informed Unum during her appeal and as can be seen on the footage, the bag of trash contains empty plastic bottles. Lifting the bag over her head was no feat of strength or indication of recovery.

Further, bending at the waist and leaning into a car do not relate to Fleming’s restrictions and limitations. Fleming suffers from degenerative disc disease of her cervical spine—i.e., her neck. Although she was diagnosed in recent years with adult onset scoliosis, her neck pain is her primary disabling condition. The fact that Fleming took out the trash or bent down to place a one-pound cooler in her car does not render her capable of full-time employment as a litigation attorney. See Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) (“This court has repeatedly asserted that the mere fact that a plaintiff has carried on certain daily activities . . . does not in any way detract from her credibility as to her overall disability. One does not need to be ‘utterly incapacitated’ in order to be disabled.” (citation omitted)). That footage shows Fleming leaving her apartment once—for a doctor’s appointment—over the course of two days. Both coming and going from her apartment, Fleming walked gingerly down and up a flight of stairs, one step at a time, while holding onto the handrail for support. If anything, the surveillance footage confirms that Fleming spent the majority of her time at home and had to utilize extreme care when leaving her apartment.”

“Even if the surveillance footage was somehow inconsistent with Fleming’s medical records and self-reported pain, the Ninth Circuit is understandably skeptical of insurers’ reliance on brief surveillance footage as proof of a claimant’s capacity to work full-time. See Grosz Salomon v. Paul Revere Life Ins. Co., 237 F.3d 1154, 1162 n.36 (9th Cir. 2001) (affirming district court’s rejection of video surveillance as proof of work capacity and noting that it “did not shed much light on whether she could function full-time as a trial attorney”); see also Wagner v. Am. United Life Ins. Co., 731 Fed. App’x 495, 497– 98 (6th

Cir. 2018) (“[T]he surveillance video captured [plaintiff] for 20 minutes over a two-hour period, and only for a few minutes at a time. It is weak evidence of anything beyond those minutes, given that (according to [plaintiff] and his doctors) his pain would come and go. And [plaintiff’s] ability to live alone and to engage in sporadic activities says little about his ability to go to work.”). The Court sees no reason to credit Unum’s 15 minutes of surveillance footage from one day here, especially when it is contradicted by over ten years of medical records.

Without the surveillance footage, Unum’s determination that Fleming no longer qualified as disabled rested entirely on cherry-picked statements from Fleming’s physicians and a paper-only review of Fleming’s claim. First, Unum asserts that according to a person in Dr. Kerr’s office, Dr. Kerr was “not advising” as to any work capacity restrictions or

limitations. (Dkt. 31 at 11.) However, as noted above, the notes that were actually written by Dr. Kerr consistently confirmed Fleming’s inability to lift more than 10 pounds, her tenderness and decreased range of motion, and chronic pain. Next, Unum argues that Dr. Kohli, Plaintiff’s endocrinologist, was not issuing any restrictions and limitations. (Id. at 25.) But Plaintiff visited Dr. Kohli to determine the cause of her weight gain—not for any conditions related to her disability. (AR 2057.) Finally, Unum emphasizes that in 2016, Dr. Carden would no longer complete Fleming’s disability forms. (Dkt. 31 at 25.) Dr. Carden was not completing her forms because she stopped seeing him. Accordingly, Dr. Granlund, Fleming’s new treating physician, began completing her forms. (AR 1615–17.) As noted above, Dr. Granlund, like Dr. Kerr, confirmed Fleming’s symptoms after comprehensive in-person visits, a review of her medications, and lab testing.”

The court found in favor of the plaintiff.

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Due to the number of questions I receive about surveillance I thought it might be interesting to write an article explaining the theory of insurance surveillance vs. observed functional capacity. While most insureds might be tempted to view surveillance in a macro perspective, I can assure you that insurance companies have a completely different micro interpretation of “activity” they capture on a CD.

Let’s use the example of Ms. B. who decides to take her grandchildren to the Mall. She is currently receiving disability benefits from Unum for chronic back pain due to failed back surgeries. Ms. B. is having a “good day” but wants to be sure she takes it easy rather than “suffer for a week” afterward. Ms. B. has an ERISA Plan.

Ms. B drives to the Mall and is only able to find a parking space a considerable distance from the door. She and her grandchildren are observed walking into the Mall wherein after walking 15 minutes she finds a bench and sits there for several minutes. Later, she walks another 15 minutes and rests again, but her grandchildren quickly convince her to enter the bookstore for a special purpose. After 20 minutes in the book store, Ms. B. walks another 15 minutes. Unable to find another bench, she leans up against a wall. Subsequently, she repeats her steps on the way back to the parking lot, resting at various intervals.

I want you to visually imagine a time line:

____________15 Minutes   Rest A  _____________15 Minutes   Rest B etc.

Although Ms. B. is unaware of the surveillance at the time, she later finds out about it and hopes her insurer will note she had several rest periods after about 10-15 minutes. However, her insurance company makes the following interpretation:

  • Claimant is able to walk upright continuously without any evidence of back pain from parking lot to building.
  • There are no observed evidences of cervical issues; claimant is able to turn neck 180 degrees without pain.
  • Claimant is observed not using any devices, canes braces etc. when walking.
  • Claimant was able to walk a total distance of 2 miles with no visual evidences of pain.
  • Claimant was able to carry plastic bags with purchases estimated to weigh 10 lbs. and was able to move, lift and rotate shoulders, have fine manipulation of hands, wrists and arms.
  • Claimant was observed lifting a young child of the approximate age of 5 and 30 lbs.  walking a short distance.
  • Claimant was observed for 2 hours inside the Mall and showed no sign of fatigue or distress, also being responsible for young children in a public setting.
  • Claimant showed no signs of migraine headache even after walking in a well-lighted public Mall.
  • On the way out, claimant was able to push open a heavy metal door while carrying the smallest of her grandchildren.

While Ms. B. notes she stopped and rested every 15 minutes and that she did not exceed her reported functional capacity, Unum’s RN reviewer documents the following after reviewing the surveillance report:

“Based on recent surveillance, this claimant demonstrated she was able to walk at least 25 minutes (10 min from the parking lot to the Mall plus 15 minutes before first rest period), standing in an upright position with no outward evidences of chronic pain or migraine. In addition, she was able to lift at least 30 lbs., and carry an estimated 10-15 in bagged weight. Estimates indicate walking, lifting and carrying observations show at least a 10 METS functional capacity equating to at least “light” or “medium” work capacity with intermittent rest breaks suggesting part-time capacity. It is likely this claimant would be able to perform 4 hours per day in a part-time capacity. Will provide treating physician with a copy of the surveillance report and then will contact for confirmation of functional work capacity.”

Keep in mind that Ms. B’s ERISA Plan contains a provision that states claims may be denied if claimant has part-time work capacity but refuses to do so. Unum’s managers knew this in advance before they scheduled the surveillance. Ms. B. was actually targeted for “part-time work capacity” and all Unum had to do was catch her at it. Once established, Unum will give Ms. B. 30 days to find a part-time job.

Although Ms. B. thought her trip to the Mall would be OK because she made sure to rest at various intervals, it wasn’t. Those insureds who tell me, “I don’t care if I’m surveilled, I don’t do anything wrong”, are risking a “work capacity interpretation” that could be disastrous to a disability claim.

Insurance companies interpret strange things from surveillance reports. Recently, an insured diagnosed with a TBI (traumatic brain injury) was surveilled and the report went on and on about how the insured “walked her dog.” TBI causes cognition, sight and speech problems, but clearly it does not affect the person’s ability to walk a dog. Still, Unum is arguing the insured demonstrated work capacity.

The very worst interpretation I came across was a Unum surveillance of a male claimant impaired due to mental issues. A HUB investigator observed him having sex in his car, in the woods. Unum’s interpretation of the report was that “if the claimant was able to arrange sexual activity with a partner, particularly in the woods, he was not depressed, and should go back to work”. This is really far fetched if you ask me.

Technically, the definition of “work capacity”, and this is my defintion by the way, is:

“The sum total or culmination of physical or mental capability required to perform work for compensation in social settings on a consistent or sustained basis.”

Likewise, the defintion of “physical or mental capacity is”: (also my definition)

“The sum total or culmination of physical or mental capability required to perform activities of daily living, engage in unaided self-care, and provide for one’s own desired quality of life.”

I hope this has been helpful to your understanding of insurnce surveillance. If anyone has any questions, please feel free to contact me. You can’t take back surveillance – once it’s in the record it stays there whether its misrepresented or not.

 

 

 

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This is just a reminder that summer surveillance is in full swing. Several people have contacted me asking for advice when they noticed cars following them, or sitting across the street.

While I have always advised clients and non-clients not to exceed their reported restrictions and limitations,  not everyone listens to good advice.

Some one recently told me, “Yes, I had to go to my family outing at the lake but I suffered for a week afterward.” I wouldn’t count on this excuse getting you out of a denied claim by Labor Day. The “good days and bad days” just doesn’t cut it anymore with most insurers.

The best course is not to exceed your reported medical restrictions and limitations and be aware of what’s happening around you.

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