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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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While most insureds seem to envision surveillance as a video camera sticking out of a blacked-out van across the street, it’s clear that HUB and other insurance investigators have fine-tuned the art of spying on those who receive disability  benefits. No longer is there a lone-wolf investigator hiding behind neighborhood  bushes, but a very sophisticated, planned operation that views you coming and going.

Most surveillance today is “tag” in nature meaning there are at least two or more investigators strategically positioned at various points in and around your residence and geographical location. There can be two or more cars involved to prevent insureds from noticing the surveillance. Investigators often meet at certain locations and change the cars they are driving to foil the cleverest of insureds from blowing their cover.

It would not be unusual, for example, to have two HUB investigators stationed around your house. When you leave, one HUB guy pursues you and then lets the second vehicle take over. The name of the game is to record insureds, unnoticed, and record as much activity as possible.

Attending a field interview at McDonald’s is very interesting. When you enter the parking lot, take notice of cars backed in. Who backs in their cars at McDonald’s? Only those videotaping out the front window perhaps?

Before the surveillance actually takes place, investigators have already hacked into social media and have a good sense of where you live, what cars you drive, property you own and where you go. Social media hacking isn’t just for disability, in fact, Travelers gets into Facebook pages looking for “hazards and perils” to increase automobile premiums. A picture of an insured getting into a car with a Bud in his hand could cost him more for auto insurance in the long run.

An average three-day surveillance costs from $800 to well over $2,500. I suspect use of the  more sophisticated equipment such as drones and special software is costly and isn’t used in every surveillance investigation. I am still getting word that insurance surveillance, while frequently used, is shopped for the cheapest deals in town.

I am also told that technical equipment commonly used for surveillance can record as much as 500 ft. away. While this article isn’t intended to discuss all of the equipment available for surveillance, it’s astounding to think that you can be seen, and recorded, from 5 football fields away by two or more investigators in several different cars.

Insurance surveillance isn’t nothing. Insurance companies are willing to invest millions of dollars per year in having their insureds spied upon. You can bet it’s profitable.

Like field interview requests, surveillance is an indication there are internal red flags identified that need to be resolved. Although the primary intent of surveillance is to identify “inconsistency of report”, misrepresenting what is actually recorded by translating activities into METS and work capacity goes a long way to assist insurers to deny more and mor claims.

It is summer. Fourth of July festivities are about to begin. The HUB parking lots are empty because they are working diligently to record you exceeding your restrictions and limitations.

If you have a disability claim, please consider that surveillance reflects there is a red flag associated with your claim, and you may be the victim of multiple investigators watching you, and following you at the same time.

Any risks you take in exceeding your R&Ls could result in deniable claims by Labor Day.

 

 

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I received the following comment to the blog this morning. I appreciate the fact that this person took the time to care about others who are private disability victims. Here is the original text. I’ve also included my response.

COMMENT


“I work in a doctor’s office and see the results of this several times a month. It is not worth it. The videotapes aren’t just used to deny claims. Most patients spend years seeking a diagnosis and retaining a knowledgeable physician. It is becoming rare for specialists to even support disability claims or agree to fill out forms and deal with insurers. The insurer uses that and our doctor shortage to their advantage.

In addition to harassing the physician and staff, the skillfully edited tapes are always sent to your doctors. We have even seen them on patients we haven’t seen in years, to get an “opinion” on your reported symptoms. The fastest way to lose a doctor is by not following orders or having their reputation and medical opinions questioned due to your actions. Yes, doctors know you have good days but even selectively edited tapes are powerful. Suddenly, the doctor has questions at the back of his mind and you lose the only local specialist. It will also mean they pass along that information to other doctors who call when you try to retain them. Now without financial resources, there may be no good replacement, let alone one willing to deal with the hassle of a disability claim for a non compliant patient.

The insurer wins by turning your own doctor and your reports against you. Follow your doctor’s orders, honestly report, and assume you are being recorded in public. Finally, PLEASE hire someone like Linda who really knows how to help you.”

MY RESPONSE


Thank you so very much for your comments concerning surveillance and the after math of consequences that takes place. I sometimes wonder whether my readers take me seriously, or believe that many of my posts are reactionary trying to scare people into hiring me.

The truth is, all of the issues I write about on the blog are either provable by documentation, or have been personally reviewed by me, or have been directly communicated to me by credible sources, or sadly, I’ve done it myself as a former claims handler.

I appreciate your comment as I now realize I’ve never discussed what happens to surveillance CDs once they are provided to insurers. What you describe from physicians’ offices is very accurate and probably is the most common reason why physicians “fire” their disability patients. At the time, it may seem pretty benign to romp in the woods at a family picnic by the lake, until you receive a call from your doctor’s office that you need to find someone else to support your disability.

Although a few treating physicians side with their patients and respond, “The surveillance CD does not depict anything other than my treatment plan communicated to my patient and does not change my medical opinion, or medical restrictions”, physicians have a tendency to “act strange”, or “become very conservative” in reporting future R&Ls.

Doctors may not share with you that they have viewed a three-day recent surveillance from your insurance company and that he/she felt a bit of an idiot for recommending total disability. This is the point in time when you begin to notice a change in your doctor’s attitude and facial expressions during visits because in the back of his mind, he is now wondering if you can really work. Remember, “seeing is believing?” That goes for treating physicians as well.

Thanks again for your comment and support. Sometimes I do feel as though people do not always believe me when I write articles or make recommendations. Just yesterday, an insured told me she wanted to wait to hire me so she could “just wait and see what happens.” Sadly, the next thing to happen will be a denied claim when I can do nothing to help her, and her options are limited and costly. Unlike lawyers my focus is to assist insureds to “prevent” denials, not have to deal with them afterwards.

A special thank you to all of my readers and supporters. I couldn’t do this without your interest and continued support!

 

 

 

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