As a lawyer handling ERISA long-term disability claims in Chicago, one of the most frequent questions clients ask me is whether the insurer will conduct surveillance, and whether it will hurt their claim. The answer is usually, “it depends.” Insurers use surveillance in a small percentage of long-term disability claims, and usually do so only after they’ve received some conflicting responses about your physical abilities, either from you or from doctors. The good news is that unless the surveillance shows you doing something you represented you cannot do, the surveillance is likely to be harmless. Insurers still sometimes try to use seemingly harmless surveillance to deny claims, though.
In Druhot v. Reliance Standard Life Insurance Co., No. 16-2053, 2017 U.S. Dist. LEXIS 159678 (N.D. Ill. Sept. 28, 2017), Druhot worked as an attorney, and had job responsibilities including attending meetings with clients at their place of business, attending court hearings, and advocating for clients in all venues. Reliance Standard contended Druhot could do all these tasks because she was observed on surveillance walking her dog in her neighborhood. Understandably, the court could not draw a link between the policy’s requirement that Druhot be unable to perform the material and substantial duties of her occupation as an attorney with the ability to briefly walk her own dog in her neighborhood. Relying on Tate v. Long Term Disability Plan for Salaried Employees of Champion Int’l, 545 F.3d 555, 561 (7th Cir. 2008), the court explained that unless Druhot’s job was to walk dogs for a living, the brief footage of her walking her own dog appeared irrelevant.
There can be other cases, however, where surveillance can be damaging, especially if it shows you doing something you told the insurer you cannot do, as it can undermine your credibility. For example, in Marantz v. Permanente Medical Group, Inc. Long Term Disability Plan, 687 F.3d 320, 330 (7th Cir. 2012), the claimant said she could not work more than half a day without needing a day to recuperate, yet was observed on surveillance performing activities for full days multiple days in a row. There was also Takata v. Hartford Comprehensive Employee Benefit Services Co., 2012 U.S. Dist. LEXIS 148809 (E.D. Wash. Oct. 16, 2012), where the surveillance showed the claimant instructing back to back Tae Kwon Do classes, though the claimant told the insurer she was completely incapacitated.
Don’t allow that to happen to you. Consult an ERISA long-term disability lawyer early and make sure your communications and your doctors’ communications with the insurer are consistent, and not drawing any suspicion from the insurer.
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