July 04, 2016, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Is your insurance company allowed to conduct surveillance when you are claiming long-term disability benefits? The simple answer is yes, within certain limits.
As a starting point, your insurance company will need to be able to show that the use of surveillance was reasonable, relevant and necessary in your claim. This will depend upon the medical and documentary evidence as well as the specific facts in your claim. In the majority of long-term disability claims however, insurance companies will be able to satisfy this part of the test.
Once you have started a formal long-term disability action against your insurance company, you will be legally considered to have agreed and consented to the use of surveillance by your insurance company. The use of surveillance in litigated long-term disability claims is in fact a common and accepted practice. This includes the use of surveillance photographs and video recordings.
Surveillance is most commonly used by insurance companies in long-term disability claims in an attempt to determine and to show what you are functionally able to do.
(EXAMPLE - You have indicated in your claim for long-term disability benefits that you are not able to work in any occupation due to your physical and emotional symptoms. In this situation, your insurance company may decide to conduct surveillance in an effort to gain a better understanding of what you are able to do and to try to determine if there is some type of appropriate work that you may be able to perform. For example, as part of this surveillance investigation, they may look to determine how long you are able to walk, sit and stand or what type of objects you are able to lift or carry. They may also look to see what type of activities you are able to perform (ex. driving, climbing stairs, yard work, grocery shopping, childcare, walking the dog, swimming, golfing etc.))
Surveillance is also commonly used by insurance companies, in long-term disability claims, in attempt to challenge your credibility.
(EXAMPLE - You have indicated in your claim for long-term disability benefits that you are not able to sit, stand or walk for longer than 15 minutes and that you are not able to cut the grass, shop for groceries, walk the dog or drive a car. In this situation, your insurance company may decide to conduct surveillance in an effort to determine whether or not your claims are in fact true and consistent. If what you have reported is inconsistent with what is observed on surveillance, your insurance company may decide to use the surveillance evidence at trial in an effort to challenge your credibility and to deny the payment of your long-term disability benefits.)
When conducting surveillance in a claim for long-term disability benefits, your insurance company must also take steps to ensure that they remain respectful of your privacy rights as well as the privacy rights of others. As a general rule, surveillance should be conducted in public areas and not in areas where a high level of privacy is ordinarily expected. For example, surveillance should not be conducted inside your home, through the window of a home, in a shower, in a washroom or in a change room. A surveillance investigator should not talk to or approach you directly. Additionally, a surveillance investigator should be careful to limit and restrict any surveillance photographs or video that might show or identify any other individuals.
If your insurance company conducts surveillance, as part of your claim for long-term disability benefits, they will be required to notify your lawyer that surveillance has been conducted and to provide your lawyer with details of the surveillance. If your insurance company intends to use the surveillance evidence at trial in an effort to prove what you are functionally able to do, they will also be required to provide your lawyer with a copy of any actual surveillance evidence (i.e. including copies of any reports, videos or photographs)..
Video surveillance is permissible, though the thought of your insurance company video surveilling their insured is offensive to many. However, when it comes to a trial, when a judge is required to determine whether what you claim about your abilities and functionality match with what is being portrayed on video can have a significant impact on the outcome of a trial. A picture is worth a thousand words and video surveillance certainly can play a significant role in influencing the outcome of a trial. It is very important that you be as accurate as possible when you describe your symptoms and their impact on your activities of daily living, recreational activities, your workplace and life in general. The success and failure of a trial rests very much on the credibility of the disabled insured. At the same time, it is well recognized that one cannot just rely on video surveillance to truly understand the impact of injuries or disability and related symptoms on a disabled person. Video surveillance does not show the pain that a person is feeling. Video surveillance does not show the effect that activity can have on a person later on when they are home – whether their symptoms became aggravated, causing increase pain, fatigue, dizziness or nausea for example, requiring the insured to rest for a period of time, take medications to deal with the pain and/or stop all activities.
Each case is unique and it is very important that you speak to an experienced long-term disability lawyer in order to ensure that you understand and protect your legal rights when it comes to the use of surveillance in your particular case.
Article prepared by Chris Corbett with contribution from Rob Deutschmann