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Insurance Company Surveillance during LTD Leave | Author: Martel Mikhail, Employment Lawyer
Employees who receive private disability coverage through work will sometimes require them for short or long-term illnesses and disabilities. If you have applied for them before, then you already know how complex the qualifying process is. Short-term disability claims come with their own set of challenges. However those applying for, and already on, long-term disability will face exponentially more scrutiny. Insurance companies will utilize extensive methods to evaluate such claims, including one of the most insidious, covert surveillance.
LTD claimants are often shell-shocked to learn how widespread this practice is in Canada. The insurance industry spends millions of dollars on it annually. Surveillance allows insurers to gather evidence for discontinuing or denying claims. For these corporations, motivated by profits and shareholder equity, surveillance practices are extremely valuable tools in their arsenal. They facilitate cost reductions by keeping their claim payouts as low as possible.
Most LTD insurance forms include standard clauses that give insurance companies permission to “evaluate the validity of the claim.” Consequently, claimants grant consent for surveillance when they sign the application forms.
Here are a few common questions we get asked on this topic:
Canadians receive privacy protection under the Personal Information Protection and Electronic Documents Act (“PIPEDA”). This federal legislation governs the collection, use and disclosure of personal information that the private sector generates during commercial activities. The Office of the Privacy Commissioner of Canada oversees compliance and complaints in this matter. In recent times, they have markedly improved individual rights to privacy by successfully restricting institutional access to data.
Your right to privacy during insurance company surveillance depends on reasonable expectations for privacy under differing circumstances. For example, you can expect full privacy when using washroom facilities in a restaurant. However, this same right is reduced when you engage in a public act, like taking a walk in the park. Reasonably, you can expect very little privacy in this situation. Such matters became of material importance in a case where a private investigator (PI) taped a plaintiff, who was an LTD claimant, while she was inside her home. She assumed she had the right to privacy. He had conducted the surveillance from outside when her lights were on and the curtains, undrawn. The judge ruled that the claimant could not assert reasonable expectations of privacy under those circumstances.
Canadian insurance companies remain subject to PIPEDA which places limits on the circumstances under which they can collect, use and disclose information gathered without consent. They may use video surveillance without consent if:
1. the collection with the knowledge and consent of the individual would compromise the availability of accurate information, and
2. the collection is reasonable for investigating a breach of an agreement or a contravention of the law.
Consequently, this makes virtually all covert surveillance of LTD claimants legal.
Insurance companies engage the services of private investigators to conduct surveillance activities. This can cost them between $5,000 and $10,000 per case. Consequently, insurers deploy covert surveillance when assessing larger claims that can become very expensive for them. Generally, you can expect to be surveilled if you are a younger LTD claimant in your 30’s and 40’s. Your claim might stand to cost the insurance company over $1M.
The PI may secretly follow you around for some period of time hoping to collect evidence that contradicts information in your medical records and claim applications. The insurance company can confidently deny or discontinue your claim if they collect evidence of you playing a robust game of pickup hockey, for example, when your file indicates severe mobility issues.
However, disability claims cases are not always this black and white. In the case of invisible diseases like chronic pain or mental illness, surveillance tapes might only tell the story of a moment in time when you might be having a “good day.” Regardless, video and photo evidence can play powerful evidentiary roles to derail a valid claim. Insurance companies will present this information extensively to their advantage to convince jurors and judges when claim denials turn into lawsuits.
Surveillance and Harassment
Sometimes, unscrupulous insurance companies will use surveillance on claimants as a “fishing expedition” without any evidentiary proof of foul play. They use this to harass ill and injured individuals, hoping to frustrate them off the insurance roster to get back to work. Experts who have studied this matter for decades attest to the toll it takes on the mental health of individuals. It leaves those who are coping with very difficult circumstances feeling like criminals.
While privacy laws remain rather anemic in protecting those who feel violated by surveillance practices, an experienced employment lawyer familiar with disability benefits matters can help you successfully maneuver through the matters using human rights protections, where abusive practices are prohibited by law.
About The Author
Martel Mikhail, B.Soc. Sc., J.D., is an employment lawyer and associate at Lecker & Associates.
Lecker & Associates has practiced employment and disability benefits law for over three decades. We have successfully represented employees in disputes against their employers and insurance companies. If you are caught up in a contentious battle with your employer or insurance provider about your disability benefits, contact us. Do not let the matter of legal fees hold you back. The initial assessment is free and we take on a vast majority of cases based on a percentage of what we can recover for you.
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