Surveillance evidence generally becomes relevant when policy holders are receiving LTD benefits, or when litigation is taking place where payment for benefits is being sought. This occurs where the insurance provider is attempting to prove that the policy holder is not credible, or that the disability giving rise to benefits has been exaggerated or is non-existent, which may disentitle the policy holder from receiving benefits as he or she could be deemed to be able to work.
Insurance companies will often obtain surveillance evidence to challenge a policy holder’s benefit entitlement in cases of subjective disabilities, such as chronic fatigue, fibromyalgia, and mental health conditions. This is because such disabilities are generally diagnosed based on the subjective evidence provided by the policy holder, regarding level of pain, inability to move, or difficulty carrying on with work-related tasks. Where this is the case, insurance companies will use surveillance evidence to attempt to contradict the policy holder’s claims with regards to his or her inability to work. For example, where the insured claims to suffer from chronic pain, the insurance company may use as evidence against him or her, photos or videos that display the insured performing physically demanding tasks.
It is not uncommon for insurance companies to engage private investigators to take photos and video of policy holders claiming LTD benefits, or who are in the process of litigation to obtain benefits. This is generally allowed as long as the surveillance is conducted in public spaces. However, investigators are not allowed to conduct surveillance of the policy holder when he or she is in their own home. Surveillance may also involve an examination of the policy holder’s online presence, such as social media pictures and comments.
Where LTD benefits have been denied, or litigation is ongoing regarding the same, there is no general rule as to how the Court will view surveillance evidence. To some judges, surveillance evidence may be damning evidence with regards to the policy holder’s credibility, and would cause them to determine that there is no entitlement to LTD benefits. For others, such evidence may not hold much weight as videos and photos do not provide sufficient context with regards to the disability. For example, where video exists of the policy holder performing physical tasks, a judge may take into consideration the fact that the video only shows a small part of daily life. It is possible that the policy holder, after performing such tasks, was forced to spend the rest of the day in bed due to his or her disability, or that, as it is the case with many disabilities, there are simply good and bad days. Where subjective disabilities such as chronic fatigue or chronic pain are concerned, the credibility of the policy holder may play a critical role in determining the weight given to surveillance evidence.
As lawyers with extensive experience litigating LTD benefits cases, we often advise our clients regarding the effect of surveillance evidence and their entitlements. Contact us anytime if you require assistance.
