A lot of people call and say – what am I supposed to do, sit home all day? I can’t live a life, I can’t do any activities because they will put me on video. Can I go to the gym, can I go grocery shopping? And there is a quote here from a recent case, the California Federal court, and it says – “the court has repeatedly asserted that the mere fact that a claimant has carried on certain daily activities does not detract in any way her credibility as to her overall disability. One does not need to be utterly incapacitated in order to be disabled.” So I think it is really important for people to understand that you can go about living your life, do somewhat normal things, you don’t have to be bed ridden in order to collect disability. You should not live in fear that disability carriers will see you on video because just because they see you outside does not mean benefits are going to be cut off.
But I definitely think that they should be cautioned just because the insurance companies will do disability video surveillance, be cautioned not to exaggerate their symptoms just because they may think that it may get them a favorable result.
It’s almost like your Miranda rights. What you say can and will be used against you. What you hold out to the insurance company, you better believe they can use it against you or they are going to use it against you.
I want to discuss a couple of cases where the disability carriers denied the claims based on what they saw on the video surveillance and these were some claims that came out favorable for the claimant.
For example, there was a case against Hartford Disability Insurance Company where the surveillance evidence showed a claimant walking, driving and doing errands for a couple hours on one day and the court basically said that just because this person was doing errands and was able to walk and drive does not mean that the claimant is able to work an 8-hour a day job nor is sitting for four hours while being interviewed be equivalent of working on a full time basis.
Another case – this was against Prudential Disability Insurance Company in the southern district of California – the observations of a claimant riding an exercise bicycle in a gym are also not inconsistent with her doctor’s conclusion that the plaintiff would experience waxing and waning of symptoms causing her to feel better at times and worse at others.
So, if I was going to sum up surveillance videos for claimants, most of the activities that you want to do when you go outside or whatever you are doing in your free time are okay so long as they are consistent with what you are telling your doctors, what you are telling your friends, anybody that the insurance company can get a hold of to find out what you are really doing.
I see a lot of claim denials and a lot of concerns come about when the claimants are assessed submit to these field interviews. All the time, the companies want to do these field interviews with people who are already on claim or trying to get on claim. And in the field interviews they will ask specific questions about what activities they have been doing, how long can they sit, how long they can stand and how many times have they sat in field interviews where they ask them those questions and ten minutes later, they bring out their lap top, pop up the video screen and say – you just told us you can’t stand for more than an hour, we have you on tape walking around for more than two hours in grocery stores. Now how often have you seen something like that?
You do see that. You will see, even in those field interviews, you will sense it’s coming, you will sense it in the question what they are doing, it’s more like in-person surveillance, it’s not quite under cover during those field interviews where they are watching you. If you say you can’t sit for a half hour without feeling discomfort and these field interviews take a while but you can almost sense that, you do see that a plenty of times. And insurance companies are not necessarily under a duty to provide you with the surveillance tapes. So at certain points in the claim, it always goes back to the fact that honesty is the best policy, you have to be truthful, you can’t try to embellish too much or it’s going to turn to a case where the insurance company is going to make it a case of character assassination and paint you as a liar.