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Surveillance and Social Media Investigations by Long-Term Disability Insurance Companies

If you’re applying for long-term disability benefits, not much of your private life is off limits. Whether you’re mowing your lawn or posting on your Facebook page, your disability insurer can monitor your activities in search of any reason to deny your claim for benefits.  And, it may well do so.

In O’Bryan v. Consol Energy, Inc., (2012), the Sixth Circuit (which includes all federal courts in Tennessee) held that there is nothing improper with a plan administrator conducting surveillance on a claimant for long-term disability benefits.  In that case, Liberty Life Assurance Company (“Liberty”) paid an investigator to put a disability claimant under surveillance.  The investigator then observed the claimant performing common daily tasks, such as getting in and out of his vehicle, putting fuel in his vehicle, and mowing the lawn. Because of the investigator’s findings, Liberty denied the disability claim.  When the Plaintiff challenged the company’s decision, the court upheld Liberty’s decision to deny benefits, specifically citing Liberty’s argument that the investigator’s surveillance report contradicted the symptoms the claimant reported to his medical examiners.

For claimants, the problem with having their day-to-day activities monitored (besides the privacy concerns) is that a surveillance report may not accurately capture their limitations.  This is particularly true for people with conditions that can fluctuate widely from one day to the next, such as Multiple Sclerosis, Rheumatoid Arthritis, or arrhythmias. For example, on any given day, a claimant with Lupus may mow the lawn or run routine errands. However, in the days after performing these activities, she may physically struggle to prepare a simple meal or even to get out of bed.  If that claimant is placed under surveillance, however, the insurance company’s paid investigator can put together a report that over-emphasizes what she is able to do on her good days without proper consideration of her limitations.

Courts will give insurance companies wide latitude in investigating a claim for long-term disability benefits.  For example, in Austin-Conrad v. Reliance Standard Life Ins. Co. (2016), a lower court in Kentucky ruled that the insurance company (“Reliance”) did not act improperly when it monitored the claimant’s Facebook posts.  In that case, a claimant diagnosed with Fibromyalgia applied for long-term disability benefits.  Her physician stated that she had chronic pain, and that her functional capacity was at 20%.

In evaluating the claimant’s condition, Reliance conducted a “social media surveillance” in which it monitored the claimant’s Facebook posts.  Over a two-year period, Reliance read posts from the claimant stating that she went on vacations, participated in ghost hunting expeditions and attended a John Mellencamp concert.  Based, in part, on their documentation of her social media history, Reliance denied the claimant long-term disability benefits.  The court upheld the denial of benefits stating that the insurance company used the social media report as a tool in determining the plaintiff was capable of work, and that it did not afford the report “undue” weight.

Much like they have with traditional surveillance, insurance companies can manipulate the findings of a social media investigation against the claimant.  The Austin Conrad decision is a good example of the potential to distort a claimant’s abilities based on a social media investigation. In that case, it is perfectly plausible that the claimant could not meet the demands of a full-time, 40-hour a week job even though she could occasionally attend a concert or spend a few hours searching for ghosts.  The claimant’s Facebook posts merely gave the insurer a pretense to deny the claim.

Austin Conrad shows how an insurance company can take a claimant’s social media history out of context to deny a long-term disability claim.  Remember, in an ERISA case, an insurance company does not have to show the court that it made the correct decision; only that its decision was not “arbitrary and capricious.” An insurer can, therefore, use a social media report as a tool to help show the court that it had a basis for its decision.

The social media activity of a spouse or partner is not off limits either. In Davis v. Aetna Life Ins. Co. (2017), the Fifth Circuit allowed the defendant to deny a disability claim based, in part, on its review of the claimant’s husband’s Facebook page and what he shared about his wife’s activities.

Still, the Davis court, similar to Austin-Conrad court, noted that the insurer’s social media search was only part of the evidence used to deny the disability claim. Courts will probably not allow an insurer to base its decision solely on a claimant’s social media activity.  Nevertheless, for long-term disability claimants in particular, it is a good practice to be careful what they share online.  Anything you post can—and will—be used against you.