We often hear from our clients about instances where they believe that the insurance company that they have filed a long-term disability claim with is videotaping them when in public. Often the question is whether this is a legal strategy or if they can sue for what the see as “an invasion of privacy.” Basically, ERISA law, though essentially protective of claimants rights, overrides your right to bring a suit for invasion of privacy.
Because of what is referred to as pre-emption, all legal action, or lawsuits, taken or filed under an ERISA policy can only be brought in front of a federal court; making state law, even those governing right to privacy, inapplicable. The laws created by your state give you no protection as federal law, under ERISA terms, over-rides them. Therefore, if you have filed a long-term disability appeal or claim against your insurance company, understand that anytime you walk out your front door, any and all of your public actions can, and most likely are, recorded to be used as evidence against you.
A common mistake made by claimants is continuing the same physical actions as they did before the claim was filed. Even in cases where the action has little to do with your disability, you should be cautious about performing them. For instance, though a client may claim that he can’t sit and use his arms to do his job, his swinging a bat at his weekly softball game will definitely be used against him as evidence. Even though another client has issues with fibromyalgia, her being recorded lifting heavy bags at the grocery store won’t exactly help her case that fatigue prohibits her from doing her job. Though actions may seem unconnected to the actual disability claim, it is important to remember to always be vigilant about what may be misconstrued to be contradictory to your claim.