Apr 14, 2016 - Publications by Mark F. Seltzer
In prior articles I have written for Physicians’ News Digest, I have brought to your attention your Disability Insurance Company’s use of surveillance and other investigative techniques used to develop information to be considered in evaluating your claim. If the results of that investigation can be viewed as contrary to your claimed activities or depicting activities your Company feels are inconsistent with what you would or would not be able to perform in relation to your disabling condition, your Company will likely use that information in a way that is beneficial to it and detrimental to your claim. For years, Companies have routinely dedicated funds to physicians’ higher monthly benefit claims to conduct traditional “boots on the ground” surveillance. That premise still holds true today.
However, in today’s world, investigative techniques have become increasingly expansive. More updated technologies are being developed all the time, including, for example, the use of drones to obtain surveillance, and also harvesting endless amounts of information available through social media and from internet searches.
When considering filing a claim, it is always important to understand that whatever information about you that is “out there” in the public domain will more than likely be obtained by your Company, and with an eye toward using it, if possible, to question, challenge, or even deny or terminate your disability insurance claim.
What has not changed with the use of surveillance and investigative information is the burden of proof that you must satisfy in order to obligate your Company to pay your benefits under your disability insurance policy. This is not to say that your Company will not act in its own best interest if it feels that it has developed the information to support an adverse decision on you claim. The problem is that once it has acted on its developed information, you could very well end up not being paid, and as a result incurring a tremendous financial hardship, in addition to having to deal with the plethora of problems and issues that flow from your disabling condition. Instead of receiving the well-deserved benefits for which you have contracted with your Company, you may find yourself walking away from the termination or denial of your claim or engaging your Company in an appeals process or litigation, all of which would more than likely take place without the receipt of the benefits you so desperately need.
Of course, whether or not surveillance and/or other investigation developed by your Company is sufficient to establish and support its position to terminate or deny your claim or to pay you less benefits than you may be entitled to depends on many factors, including whether your coverage is through a group long-term disability policy, generally governed by ERISA, or whether you have an individual disability income policy. And then there are even variations depending on state and jurisdiction that would be controlling in your claim or case.
What I want to focus on here is not just the traditional use of surveillance and investigation techniques by your Company and using that developed information to its best advantage, but the extensive use of “new age” information. By that I mean information often readily available through internet searches and by tapping into social media sites, and your Company’s use of that “new age” information to its best advantage.
The definition of “well connected” has changed in the 21st Century. It may still be “who you know,” but it is now also about on what platform you know them. It is about social media and “cyber-information”: Twitter, Facebook, Instagram, LinkedIn, YouTube, Google, Snapchat and other sites out there in “cyber space” potentially available to “anyone.” And that “anyone” includes your Disability Insurance Company, its claim staff, field representatives and investigators.
In fact, at my law firm, we make it our routine to seek and obtain internet-based information on our clients so we can achieve the most complete understanding of our clients and how to best represent them.
Think about it for a minute: how much time do you spend on the internet per day? Think about the time you spend on your computer, cell phone and tablet each day. Then think about the forms of daily information you generate and the huge volume of information “that is out there” in cyberspace to be gotten. Imagine what someone or some entity trying to develop information on you can obtain, and rather easily. And if the goal of your Company is to refute your claim or pay less benefits than it has to pay, chances are the information that you may have harmlessly disseminated into cyberspace may very well come back to haunt you. Think of all of the related privacy and confidentiality issues that occur, or lack of them, as a result of accessibility.
The “old world” techniques are still used and are still effective, especially when newer technologies are used. Your Company may still take videos of you, it may question you during its investigation by phone or in person, it may question your neighbors about you. And believe me, your Company will know your golf handicap, how often and where you play. It may know when you take out the trash, jog, work out at your gym, walk the dog, plant tulips, open your car door or push a grocery cart. But now with endless amounts of information out there in cyberspace, easily accessible through Google and other search engines, its information harvests are likely to be even more fruitful.
And add to that equation the social media circus: the crème de la crème of personal information. Twitter, Facebook, Instagram, LinkedIn, YouTube, Google and Snapchat are wonderful technologies you can tap in on a “friend” or business connection at any time. You can know what they are doing, how they feel, how they look and virtually everything that is happening in their lives 24/7. But so can your Disability Insurance Company.
The social media information output often is unedited, unmarshalled, has off-the-cuff remarks, and is sometimes (in view of today’s competitive environment) embellished to purport a better picture to the cosmos than in reality. And that’s the danger of not understanding the magnitude and importance of the internet information you put out there.
A very smart Federal Court Judge once said to me long ago: “Mr. Seltzer, it’s about perception of reality, not reality…” And the information your Company develops will be used to its best advantage, not yours. If it accumulates “stuff” that looks bad, especially if it has coordinated its investigative findings with internet information, your claim will be in big trouble. Perception can be very compelling. The more you have to explain to your Disability Insurance Company (or a Judge), the more you’ll look like either Ginger Rogers or Fred Astaire.
So what can you do about it? Make sure you understand the ramifications of everything you do in cyberspace, what impact it may have on your Disability Insurance claim or case, and how hard or impossible it may be to delete or erase once it’s out there and posted, before you do anything internet-related. Also be aware of what you have done in the past and the personal profile that will be gleaned and developed by your Company.
Understand what’s at stake with your claim: potentially hundreds of thousands or even millions of dollars over time. And understand your Company’s responsibility to fully investigate and assess your claim especially in view of the potential amount of disability benefits at play. It’s best to always assume that your Company will discover all the information that you disclose and the self-portrait you put out there in the public domain. Make sure you well understand the “new age” reality as you consider and/or pursue disability benefits from your Company.
The best way to prevent claim destruction by a “Private Eye” is to always keep your “I” private.
The law offices of Mark F. Seltzer & Associates dedicates its practice to representing physicians, health care practitioners and professionals in all aspects of disability insurance claims and cases. Learn more at www.seltzerlegal.com/publications. The firm is located in Philadelphia, Pennsylvania.