As a seasoned disability insurance lawyer, I’ve seen firsthand how surveillance can impact Long-Term Disability claims. Today, I want to shed light on this often misunderstood aspect of disability law and provide you with essential information to protect your rights.

How is Surveillance Used in Long-Term Disability Claims?

Insurance companies frequently employ surveillance tactics to verify the legitimacy of Long-Term Disability claims. While this may seem invasive, it’s a legal practice that insurers use to protect themselves against fraudulent claims13. As claimants, it’s crucial to understand how surveillance works and how it can affect your case.

What are the Different Types of Surveillance?

While there are various types of surveillance, in my experience, the most common are physical surveillance and social media monitoring. The following provides a brief overview of the different types of surveillance and some examples of what we often see in our law practice.

1. Physical Surveillance

Insurance companies often hire private investigators to observe claimants in public spaces. These investigators may follow you, photograph or video record your activities, and compile reports on your daily activities. 

For example, we often see surveillance from a private investigator who has followed our clients by car, as they run errands or attend medical appointments. They may even capture our clients in their driveways speaking with neighbours or gardening in their front yards.

2. Social Media Monitoring

In today’s digital age, your online presence can significantly impact your Long-Term Disability claim. Insurance companies may scrutinize your social media profiles for posts, photos, or videos that could contradict your reported limitations.

We have seen private investigators “be-friend” our clients on social media platforms like Facebook or gain access to our clients’ profiles, if their privacy settings allow for it. They may then view posts and photos of our clients smiling, socializing or travelling. The insurance companies can then use these “snapshots” to argue that our clients are not as disabled as they purport to be.

3. Neighbourhood Canvassing and Direct Soliciting 

Some insurers hire an investigator to go as far as interviewing your neighbours or local businesses to gather information about your activities and lifestyle. They might also contact our clients directly under false pretenses to obtain information that can be used against them.

Although we don’t often see this type of surveillance, when we do, it often requires us to provide detailed responses and explanations to ensure that the information obtained is accurate and not to be taken out of context.

For example, some of our clients may have small businesses or be attempting to start small businesses. We have seen investigators contact our clients pretending to be a potential source of business with the aim of having our client admit to being able to work. 

Is it Legal for an Insurance Company to Do Surveillance?

While surveillance is legal, there are limits to what insurance companies can do. In Canada, personal information protection laws govern surveillance activities (PIPEDA). For instance: investigators cannot trespass on private property or enter your home without permission; they cannot use listening devices to record your conversations; and surveillance must be conducted in public spaces where there is no reasonable expectation of privacy.

That means that they can observe you when you are out in public; they can troll you online and on social media accounts; and they can contact you for legitimate purposes, if you are soliciting business of any sort from the public. 

What is the Case Law on Surveillance in Long-Term Disability Cases?

Canadian courts have addressed the use of surveillance evidence in several notable cases:

In Fernandes v. Penncorp Life Insurance Company, 2014 ONCA 615, the Ontario Court of Appeal upheld the trial judge’s decision to give little weight to surveillance evidence that showed the claimant engaging in light activities for short periods. The court recognized that chronic pain sufferers may have good days and bad days, and brief periods of activity don’t necessarily indicate an ability to maintain full-time employment.

Hawkins v. Canada Life Assurance Company, 2020 BCSC 581, emphasized that surveillance evidence must be viewed in context. The court noted that a few hours of observed activity don’t necessarily reflect a person’s ability to work full-time.

In Garriock v. Manufacturers Life Insurance Company, 2009 CanLII 68181 (ON SC), the court criticized the insurer’s selective use of surveillance footage, highlighting the importance of considering all available evidence in context.

These cases underscore that while surveillance evidence can be used as evidence in disabiltiy cases, courts often view it critically and in the broader context of the claimant’s overall condition and medical evidence.

How to Protect Yourself from Unfair Surveillance in Your Long-Term Disability Claim

As a claimant, there are several steps you can take to protect yourself from potentially damaging surveillance:

Be consistent and truthful: Ensure that your reported limitations are consistent with your activities. Consistency between your statements, medical records, and observed behavior is the most important way to eliminate the risk of damaging surveillance.

Follow medical advice: Follow your doctor’s recommendations and treatment plans. This demonstrates your commitment to recovery and supports the legitimacy of your claim. For example, if your doctor has advised you to do or not do something, then what you do in public should be consistent with those recommendations.

Be cautious on social media: Set your privacy settings to the highest level and avoid accepting unknown friend requests, and be mindful of what you post or are tagged in. You will also want to ensure that any soliciting of work, even minimal work, is disclosed to the insurance company. Doing so will demonstrate that you are credible and that you are making efforts to improve your circumstances. 

Document your condition: It may be helpful to keep a journal or even simply a calendar of your symptoms, limitations, and the “good days and bad days” you experience. This can help explain any discrepancies between your reported condition and surveillance observations on certain days. For example, if the surveillance discloses a higher than normal level of function, you will be able to confirm this with your records and also confirm that your level of function is not consistently at that high level.

Be aware of your surroundings: While you shouldn’t live in fear, be mindful that you may be observed in public spaces, especially around the time of claim-related appointments, such as around the time of an independent medical assessment or if in litigation, then around the time of an Examination for Discovery or Mediation. It is important that you live your life and do what you can, when you are feeling well, but be sure that when reporting your activities, you are consistent and accurate to ensure that your credibility does not become an issue.

Educate your friends and family: Inform them about potential surveillance and advise them not to discuss your condition with strangers or to tag you in their social media posts. You should also advise them that surveillance should not cause them any concern for their personal safety or privacy. The insurance company is not permitted to conduct surveillance on them. 

What Happens when Surveillance is Used to Deny Long-Term Disability Benefits?

If your Long-Term Disability claim is denied or terminated due to surveillance evidence, it is important to not lose hope. While it may feel as though the insurer is attacking your credibility, you should be aware that most surveillance is not a strong basis to deny Long-Term Disability benefits and can be easily challenged on appeal or in litigation. 

Some ways that you can challenge surveillance is to advise the insurance company of the following:

Surveillance footage and social media posts do not tell the whole story. A few minutes or hours of activity or an upbeat post or online photo doesn’t necessarily reflect your ability to maintain full-time employment, working on a consistent basis and earning a gainful income.

As demonstrated by the cases referred to above, Courts recognize that individuals with chronic conditions may have fluctuating symptoms and occasional good days. It is entirely reasonable and not inconsistent to be active on days when you are feeling better. Furthermore, your doctors can support the fact that medically, you will have good days and bad days and that does not necessarily mean that you are able to work on a consistent basis.

The Courts have confirmed that the overall medical evidence of your condition and functionality and your treating physicians’ opinions typically carry far more weight than surveillance evidence.

The Importance of Legal Help when Challenging Surveillance

If you’re facing challenges with your Long-Term Disability claim due to surveillance, it’s crucial to seek legal advice. An experienced disability lawyer can review the surveillance evidence and challenge its validity or relevance.

We can also ensure that the insurance company is operating within legal boundaries and not breaching any privacy laws, which would warrant complaints against it to the Privacy Commission.

Sometimes it is necessary to get help from a disability lawyer and even your doctors in presenting a comprehensive picture of your medical condition, putting any surveillance footage into proper context. With the help of a lawyer and your doctors, surveillance can be easily challenged and any negative impact on our claim or on your credibility can be eliminated. 

If you have questions or concerns about surveillance, read our previous blog or feel free to contact us to discuss your specific situation. 

To sum it up on Surveillance in Long-Term Disability Claims

Surveillance in Long-Term Disability claims is a reality that must be addressed to ensure no harm comes to your disability claim. By understanding your rights, being consistent in reporting your activities to your doctors and your insurance company, and seeking proper legal representation when needed, you can protect your Long-Term Disability claim and focus on what’s most important – your health and recovery.

Remember, a few images or video clips does constitute an accurate reflection of your disability. Your medical evidence, the opinions of your treating physicians, and putting your overall condition and functioning into context are what truly matter. 

At Mulqueen Disability Law, we’re committed to protecting your rights and ensuring you receive the benefits you deserve. If you have concerns about surveillance or any aspect of your Long-Term Disability claim, we’re here to help.

Contact Mulqueen Disability Law in Markham for Trusted Guidance on Appealing a Long-Term Disability Claim Denial

If you’re facing a Long Term Disability claim denial and are concerned about its impact on your pension, reach out for professional assistance. Our team at Mulqueen Disability Law is here to help you navigate this challenging situation and fight for your rights.  With nearly 25 years experience dedicated to disability insurance litigation Courtney Mulqueen and her specialized legal team are focused on providing highly skilled, trauma-Informed legal representation to clients whose Long Term Disability claims have been denied or terminated.

Mulqueen Disability Law specializes in hard-to-prove long-term disability claims for “Invisible Conditions” such as mental illness (depression, anxiety, PTSD) and chronic conditions (pain, neurological, immunological, concussion, post-COVID)  Contact us for a free confidential consultation.

The preceding is not intended to be legal advice. This blog is made available for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this blog, you understand that there is no solicitor client relationship between you and the blog publisher. The blog should not be used as a substitute for competent legal advice from a licensed lawyer in your jurisdiction. If your disability claim has been denied and you require legal advice, contact a lawyer specializing in disability law.