Surveillance - A Disability Carrier's Number One Tool

Welcome to Season 4, Episode 3 of Winning Isn't Easy.  In this episode, we'll dive into the complicated topic of "Surveillance". 

Host Nancy L. Cavey, a seasoned attorney with extensive experience in disability claims, discusses how disability carriers aggressively employ surveillance at every stage of a claim in order to find any reason to justify a claims denial. It does not matter the severity of your disability - carriers will often videotape you, contact you repeatedly by phone, or use other methods of surveillance in order to label you a malingerer. When you listen to this episode, you may learn what to watch out for, and how to avoid this favorite denial tactic.

In this episode, we'll cover the following topics:

1 - How Disability Carriers Use the Activity of Daily Living Forms to Set Up Surveillance

2 - How Disability Carriers Use Surveillance to Attack Your Doctor’s Opinions About Your Restrictions and Limitations and Get Your Doctor to Change their Minds

3 - Tips for Attacking the Surveillance if You’re the Star in a Long-Term Disability Claim Denial Movie

Whether you're a claimant, or simply seeking valuable insights into the disability claims landscape, this episode provides essential guidance to help you succeed in your journey. Don't miss it.


Resources Mentioned In This Episode:

LINK TO ROBBED OF YOUR PEACE OF MIND: https://caveylaw.com/get-free-reports/get-disability-book/

LINK TO THE DISABILITY INSURANCE CLAIM SURVIVAL GUIDE FOR PROFESSIONALS: https://caveylaw.com/get-free-reports/disability-insurance-claim-survival-guide-professionals/

FREE CONSULT LINK: https://caveylaw.com/contact-us/


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Please remember that the content shared is for informational purposes only, and should not replace personalized legal advice or guidance from qualified professionals.

Transcript

Speaker A [00:00:16]:
 I'm Nancy KV, national ERISA disability and individual disability attorney. Welcome to winning isn't easy before we get started, I have to give you a legal disclaimer. This podcast is not legal advice. The Florida Bar association says, I have to say this, so I've said it, but nothing is going to prevent me from giving you easy to understand overview of the disability insurance world, the games the disability carriers play, and what you need to know to get the disability benefits you deserve. So off we go. Surveillance is the number one tool in the carrier denial toolbox. Companies like MetLife, Hartford and Reliance aggressively use surveillance at every stage of an ERISA disability claim. Now, surveillance will help weed out the cheats.
 
 Speaker A [00:01:10]:
 For example, in the case of quarrels versus Hartford life, Hartford had the right to request proof of loss during the duration of the claim. Quarrels had lied about working while he was collecting long term disability benefits. He was observed on surveillance working, and he specifically denied that in an in person interview with Hartford's field investigator. He even dodged employment questions. During the interview, Coral's claim was denied and ultimately he appeared in front of a federal judge and guess what he argued? He argued that surveillance was a malicious attempt to discredit him. The court thought that was a joke and the denial of his claim was a slam dunk by the court. The lesson here is that a policyholder should be truthful in their activity of daily living forms and with their treating physician. If the disability carrier wants to take your statement, you're probably being set up for a claims denial.
 
 Speaker A [00:02:09]:
 You need an attorney to prepare you and represent you in the claim. But there are often times when a disability carrier will wrongfully deny a legitimate claim or terminate a claim that's been paid for years. So let me give you an example. Michigan court rejects surveillance as meaningless, while a Kentucky court goes all in when the surveillance shows the disabled policyholder working. Now look, surveillance can be a two way street. Surveillance should have some relationship to the policy's credibility and the standard of disability. But many times surveillance shows the policyholder engaged in normal, everyday activity. And so long as the policyholder has been truthful with their doctor and the insurance company, I think that surveillance is of little value.
 
 Speaker A [00:02:57]:
 Well, let me give you an example. In the case of Carr versus MetLife in this Michigan case, the court determined that MetLife's decision to deny those long term disability benefits were arbitrary and capricious. Why? Well, MetLife had played games. They ignored and selectively reviewed evidence submitted by Carr's doctor, and they sent it to peer reviewed doctor by the name of Dr. Marcus Goldman. And without even examining Carr, Goldman relied on the surveillance and said that Carr was not credible and he didn't believe that the claimant had any restrictions or limitations. Well, the court looked at that and said, oh no, it's pretty hard to rely on a peer review report by a physician who really misconstrued, exaggerated and purposely misinterpreted what that surveillance showed. Now, as I explained in that quarrels case, the court found that quarrels had lied and it exaggerated, rather minimized his activities.
 
 Speaker A [00:04:08]:
 And really, I think one of the lessons to be learned here is that surveillance is a two way street, but there are some more lessons to be learned. And so what I wanted to do today is talk about three things. One, how disability carriers use activity of daily living forms to set you up for surveillance, how disability carriers will use surveillance to attack your doctor's opinions about your restrictions and limitations and get your doctor to change their minds and tips for attacking surveillance if you're the star in a long term disability claim denial movie, so let's take a quick break before we get going.
 
 Speaker B [00:04:49]:
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 Speaker A [00:05:10]:
 Welcome to winning isn't easy let's start with how disability carriers use the activity of daily living forms to set you up for surveillance. Video surveillance in the right circumstances can provide an overwhelming reason for the long term disability carrier to deny your claim. It captures just a mere snapshot in your life, and it fails to reveal a complete picture of your disability. For example, the surveillance might show you at a family gathering, but not show the result of excruciating pain and misery that you might suffer for days after. Long term disability carriers use surveillance to document what you're doing during the course of your day, including things like running errands, filling up your gas tank, or even going to the bank. All of this minimal activity doesn't necessarily establish that you're capable of working, but it can be used to sabotage your case. So I want to set the stage by telling you the story of hall versus prudential. And this is a Mississippi case that will explain how the game is played regardless of where you live in the United States.
 
 Speaker A [00:06:19]:
 So first, the disability carrier is going to ask you to fill out vague and open ended activity of daily living forms. These are purposely open ended so that you exaggerate or you don't tell the complete story of what your activity is, or you don't talk about a good day or a bad day. When the disability carrier gets your activity of daily living form, they are going to compare what you said to what you've told your treating physician about what they do. They're looking for inconsistencies, and once they find inconsistencies, their next step in their toolbox is going to pull out that surveillance camera. They're going to hire a third party vendor to conduct surveillance on you. Now, part of the surveillance is going to do a background check, looking at your social media accounts and looking at whether you own any corporations. But they're also going to be doing the actual surveillance. And in Hall's case, the surveillance documented her taking short walks, drives of various lengths and carrying her purse.
 
 Speaker A [00:07:30]:
 As the court ultimately pointed out, when they had this case, those activities would not on their own support the disability carrier's decision that she was not disabled. But what the surveillance did do was to establish inconsistency with her own statements, what she told her doctors, and the restrictions and limitations her doctors imposed based on her statements. In other words, her doctors relied on what she said that she could do or not do when they imposed restrictions and limitations on her. And so the court ultimately held that because her doctors relied on what she said and she was inconsistent about what she was doing, that those restrictions and limitations were not valid. Now that's quite a stretch, but it points out to you the importance of accurately completing the activity of daily living statement form in a manner that talks about good days and bad days activities depending on how you feel, depending on what kind of night you may have had before, and talking about your abilities in terms of a range. And of course, you want to make sure that whatever you're telling your doctor is consistent with what you're telling the disability carrier. So you might even want to give your doctor a copy of your activity of daily living forms. Now remember, those forms are written in a way that they're open ended.
 
 Speaker A [00:08:58]:
 So that form may ask questions about whether you use an assistive device like a cane. And if you do, you may not necessarily want to say that you always use a cane or that you always walk with a limp. Why? Because if the carrier gets surveillance of you doing what you said you couldn't do or never did, then you're in trouble because that is a huge inconsistency. While walking without a cane or a limp doesn't mean you can work, it destroys your credibility, just as it destroyed the credibility of Ms. Hall in her case. I don't want you to be a star in a surveillance horror show, and I don't want the pictures of what you are doing in your daily routine to be used in destroying your long term disability case. And as a result of what I've seen in the course of my practice, I've written a book called 23 mistakes you can make in completing your activities of daily living form, and it explains in detail how you should complete these forms. Now, of course, it's not a substitute for legal advice because each case is factually specific, but if you claim, for example, that you are walking with a cane or you have difficulty bending, or you can only lift ten pounds.
 
 Speaker A [00:10:16]:
 So if you have a back condition, you've had back surgery and you say, I can't walk more than an aisle in the grocery store, or I can't bend over to pick something off of the bottom of the grocery store, bottom shelf, or I can't even carry a case of soda, and they've got you doing those things, you have basically destroyed your case. So in this guide that I've written, I emphasize that you should never use the word never. Never use the word always. Of course, I do want you to tell the truth, but we need to explain your answers in a way that creates this range that I've talked about. Good days, bad days, days. You can do more. Your activity level is dependent on your pain or your medication. So that gives you a range of activities, as opposed to nailing you down to always doing something or never doing something.
 
 Speaker A [00:11:11]:
 I want you to make sure that whatever you have written on those activity of daily living forms is consistent with what you're telling your physician. So you actually might want to get a copy of your medical records to see what your doctor has recorded. We go in and we give a history of what's happened, but that history doesn't always end up being either complete or accurate. So I always suggest that my clients get a copy of their medical records before they complete the activity of daily living form, make sure that what they're putting on that form is consistent with what they've told their doctors and that it's in a range, and that you also give the doctor a copy of the activity of daily living form. So everybody is on the same page. The bottom line is, be truthful. Let's take a quick break before we continue.
 
 Speaker B [00:12:01]:
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 Speaker A [00:12:37]:
 Welcome back to winning isn't easy how disability carriers use surveillance to attack your doctor's opinions about your restrictions and limitations and get your doctor to change their minds. If the long term disability carrier is thinking about denying your claim for disability benefits, they're going to put surveillance on you. If you claim that you have difficulty bending, stooping, lifting, and the investigators are able to get a tape of you washing your car, bending and polishing or wiping your car dry, you've got a problem. And it doesn't have to be even as dramatic as that. If you say you have those kinds of difficulties and they have pictures of you in the grocery store getting something off of the bottom of the shelf or putting sodas into water, if you will, into your trunk, that's going to be a problem because the long term disability carrier is then going to provide your doctor with a copy of the videotape. Now, I'm sure that your doctor is not happy that they're having to bother to deal with this, much less being asked to watch some video. Now, sometimes, by the way, they don't even get the video. They get a summary of the video.
 
 Speaker A [00:13:53]:
 And that can be a huge issue because that summary is rarely accurate. But it's written in a way that will lead your doctor to question you, your credibility and the opinions that they've expressed about your restrictions and limitations. Your physician, regardless, is not going to be happy. Now, you need to understand that if you have provided your doctor with your own version of the activity of daily living form, that the doctor should be aware of what it is you say you're doing in terms of a range of activity, and that surveillance should not come as a surprise. In fact, I suggest that you tell doctors that, look, I appreciate you filling out these attending physician statement forms, but the carrier might put surveillance on me, and if they do, they may send it to you for your review and comment. So here are some things to do. First, ask the doctor to contact you. If they're contacted by the carrier or the peer review doctor, ask them not to respond.
 
 Speaker A [00:14:59]:
 If they respond, ask them to document the conversation with the carrier. If they respond, tell them to get a letter summarizing the conversation. Why? Because often the summary that the peer review doctor will prepare is not accurate. Next, make them aware that the carrier might be trying to get them to say that you can do at least sedentary work so that they can cut you off. Ask your doctor to defer to a functional capacity evaluation. Ask them to send any response to you before they send it in. And if you have an attorney such as myself, ask them if they would be kind enough to speak with your lawyer first before they respond. Okay, that's a laundry list of things, and I would suggest that not only you do that orally, but perhaps you even do it in writing.
 
 Speaker A [00:15:48]:
 You ready for a break? I've got some more information, so let's take a break for a moment, and we'll take on tips for attacking the surveillance if you're the star in a long term disability claim denial movie long term disability claims are often denied because of video surveillance. But guess what? I often see the report of a video surveillor and the film, and what I find when I review the report and the film is that it doesn't match that in fact, what they have created is a work of movie fiction. If your claim has been denied because of surveillance, you should contact a long term disability claims attorney such as myself. Among the things I'm going to be doing is I'm going to ask for a complete copy of your disability carrier file, including the surveillance and the surveillance report. Now, when I sit down to look at this surveillance film and the report, I find that it's common for the investigator to ignore what's shown on the surveillance that supports your claim. They only report what might be favorable to the disability carrier. And of course, the disability claims adjuster rarely reviews the tape and relies on the summary. Worse yet, the disability carrier will have their nurse or the investigator summarize the surveillance, leaving out the pertinent parts, and then they'll give it to the insurance company's liar for hire peer review doctor who relies on the summary.
 
 Speaker A [00:17:51]:
 But it gets worse. The disability carrier's liar for hire doctor is then going to call up your doctor, and they're going to misrepresent what that surveillance depicts. They want to poison the well with you and your doctor. The goal is to convince your doctor that you're lying and that your doctor should agree with a liar for hire peer review doctor's opinion that you can work or can work in at least a sedentary capacity. Now, what do I do as a disability attorney? I watch the video and I make a record and summary of the physical activity documented and I compare that with a surveillance activity log. Then I overlay that with what you've put on your activity of daily living form. Because I'm looking for inconsistencies and consistencies. And I am also noting the things that are important that support your claim.
 
 Speaker A [00:18:49]:
 And I am, in essence, then creating my own summary. If necessary. I take the surveillance and my summary to your treating physician. And I have them address what's seen in the videotape as compared to the misinformation and outright lies that they've been provided by the disability insurance company. I want your physician to comment on your activity level based on what you've reported to them, what they see in the surveillance film, and what your medical condition consists of. In other words, is what's depicted in this surveillance film inconsistent with your diagnosis, inconsistent with your symptoms, and inconsistent with the restrictions and limitations assigned. I also get an affidavit from you or your family about what you're doing and the difficulties you have on an ongoing basis. That might have been a good day.
 
 Speaker A [00:19:42]:
 It might have been a bad day you may have suffered as a result of what you did. And I'm going to ask that FCE provider rather to look at the surveillance and have them comment about what they see in the film and whether or not that's inconsistent or consistent with the functional capacity evaluations. And then I also will, in the right cases, send all of this to my vocational evaluator. Now, that's an expert in the world of work. I want them to compare what's shown on the tape with what's commonly known as activities of daily living. So you might be caught on videotape going to the gas station and pumping gas. Or you may be filmed going to the doctor's office, or you may be filmed running errands. I want the vocational evaluator to render an opinion that this activity does not translate into the ability to work.
 
 Speaker A [00:20:37]:
 I mean, unless you're a dog walker and they've got a picture of you walking your dog, that may not be relevant. It may not be relevant if they have a picture of you in Publix or Home Depot shopping. Those are running errands. Now, if you do something that's way in excess of your restrictions, limitations, like lifting a 50 pound bag of dog food, that's a different matter. But what I want the vocational evaluator to do is to tie together your doctor's opinions about your restrictions and limitations as corroborated by a functional capacity evaluation, if needed, with the definition of disability. In other words, does the activity depicted on this film, is it the equivalent of work activity? And does it have any relationship to the material and substantial duties of your occupation? If we're in the own occupation stage. Now, if we're in the any occupation stage, the definition of disability is normally an inability to do the material and substantial duties of any other occupation that you could do in view of your education, training skills, and your restrictions and limitations. So I want that vocational evaluator to look at what's on that videotape and tell me whether or not that activity of daily living is consistent with the ability to sustain full time sedentary employment.
 
 Speaker A [00:22:04]:
 Now, you also need to remember that the question of this surveillance has to be taken on in an ERISA appeal. You have 180 days in which to file an appeal. And you can't wait until after a lawsuit is filed to try to attack the surveillance. Let me give you an example of why this is so important. This is a story of how asthma and diabetes disabled a family physician. And Hartford's wrongful claims denial based on this surveillance was slammed by the court. So let me set the stage. Dr.
 
 Speaker A [00:22:42]:
 Vaughn was a family physician who became disabled because of chronic severe asthma, the cognitive side effects of the prednisone treatment for her asthma and her brittle, insulin dependent diabetes. Hartford approved her claim because she was unable to perform one or more of the essential duties of her occupation. They, in fact, paid benefits for over four years. And in that four year period of time, her asthmatic condition progressed. She had increasingly flares. She had diabetic neuropathy of her upper extremities. Now, we all know that disability carriers like Hartford are not in the business of paying benefits for the life of a claim. Harford conducted a review of her claim and referred the claim to its special investigation units.
 
 Speaker A [00:23:24]:
 Siu, which had surveillance performed and did an in purpose person interview. If you are covered by Hartford, this is their classic mo that they use in every case. So beware. They got 77 minutes of video surveillance over four days. Dr. Vaughn performed yard work. She hiked, she pushed equipment around her yard. She drove.
 
 Speaker A [00:23:49]:
 She got in and out of her vehicle without any observable distress, hesitation, or impairment. That's what the surveillance report said. So what did Hartford do? They said, gotcha. You're not disabled, and we're going to terminate your benefits. So, of course, Hartford did just that. She filed an appeal, which, unfortunately, was unsuccessful. And as a result, she ended up in federal court. And this is what happened in the case of Vaughn versus Hartford life.
 
 Speaker A [00:24:17]:
 It's an Oregon case. The judge was not impressed with his surveillance film and held that the denial was wrong since she was not experiencing a flare of Erasmus symptoms on the day of the surveillance and she was no more active than she told Hartford or her doctor. So it's really important that we are looking at the context of the video, what it showed, and what inconsistencies there might be in between what she may have said or you said, and the medical reports about the person's functionality. So it's really the totality of the situation. But you need to understand, it took a federal judge to reverse this wrongful denial. Wow, that's a lot of information that we've talked about today in terms of surveillance, and I hope you've learned a lot. And that's important because surveillance, as I said, is one of the disability carrier's number one denial tools in addition to the activity of daily living forms. It's a one two punch and don't let your claim get knocked out.
 
 Speaker A [00:25:21]:
 Wow. As I said, we've covered a lot and I hope you have found this episode to be enjoyable and informative. If you like this podcast, consider liking our page, leaving a review, or sharing it with your friends and family. This podcast comes out weekly, so tune in next week for another insightful episode of winning isn't easy.