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What privacy protections do I have if my disability insurance company is surveilling me?
Most privacy rights are the product of State law and thus vary from state-to-state. Generally speaking, most states prohibit you from being filmed while you have a reasonable expectation of privacy, such as in your own home, in a fenced backyard, at the doctor’s office, or in areas where a person would consider themselves to be shielded from public view.

Can my disability insurance company request records of my income, including my tax returns?
Yes. Because disability benefits are considered to be a replacement for wages, insurance companies have considerable latitude to request and examine records which disclose or verify income. Tax returns are generally subject to privacy protections and many claimants are very reluctant to disclose them, especially if they involve a spouse’s income or passive income from other sources. Despite this fact, you should not automatically refuse to disclose your tax return if it is requested. You must balance the benefits of disclosure (it may help you obtain benefits) against the detriment which may result if the returns are disclosed. You must also consider whether the policy or plan’s “cooperation clause” requires you to provide your tax returns. A qualified ERISA attorney can assist you with this decision.

If I am being interviewed by my disability insurance company, should I have a spouse, friend or lawyer present?
This is as much as a personal decision as a legal one. Certainly, if you have cognitive or fatigue problems which may be impacted by the interview process, the presence of a spouse should not be unduly disruptive. You should inform the interviewer about your mental or physical issues and that you intend to have a spouse or friend present. The presence of a lawyer, on the other hand, may raise “red flags” which could cause the disability insurance company to view your claim with suspicion. A lawyer should only be used if the atmosphere between you and the insurance company has been adversely affected by prior communications. Even then, the presence of a lawyer may not help you obtain benefits. It is important, though, that once the interview if completed, you or your spouse or friend make a record of the conversation, the questions and your responses. This will safeguard against the insurance company misrepresenting your statements in order to harm your claim.

When do disability insurance companies typically perform surveillance?
Disability insurance companies typically perform surveillance when they have reason to know about your whereabouts, especially when you will be leaving your home. For instance, surveillance is often conducted when the insurance companies schedule independent medical examinations or functional capacity examinations. The investigator will surveil you when you leave your home, arrive at the examination, and follow you during your course home. If you leave the house every day at the same time, for instance, to go jogging, you might be surveilled. If the insurance company comes to believe that you are engaged in physical activity in the public area around your home, like window-washing or repairing your car, you may find yourself surveilled.

What kind of surveillance can hurt a disability benefits claim?
It is imperative to understand that most harmful surveillance is not only of activity inconsistent with your disability. The investigator will be given access to your questionnaires or reported restrictions and limitations, hoping to find some over-expression or exaggeration in your stated capacities. For instance, your lower back condition may permit you to drive your car for one hour. Yet in response to the insurance company’s questions, you state you are unable to drive for more than 10 minutes. The insurance company has only to find you driving more than 10 minutes in order to undermine your credibility. Your credibility is always at issue when your medical or mental condition is at issue. The lesson here is: do not exaggerate your limitations and do not undertake activities in public in excess of those limitations.

I’ve heard disability insurance companies scan social media for activities of their claimants. Is that true?
Absolutely. Disability insurance companies are reported to have departments or on-staff private investigators who review social media in an attempt to identify you engaged in modes of activities incompatible with your disability. This can include reviewing your personal website, befriending you on Facebook, or communicating with you on Twitter, LinkedIn, etc. Although investigators are not supposed to fraudulently hide their identities, if the information reveals something important about your condition, the process of how the material was discovered is immaterial. Therefore, it’s imperative during the pendency of your disability claim that you avoid social media and stay in contact with your friends only through private email accounts, or do not post anything that you would not want the insurance company to see.

Can my receipt of disability benefits be affected by my traveling?
In theory, you should be entitled to travel while receiving disability benefits unless your condition restricts your ability to fly or travel by car for long distances. Generally, there is nothing inconsistent about the ability to travel and suffering from a disability. However, insurance companies and the courts often treat the ability to travel as evidence of the ability to withstand the rigors of work. For instance, in Jenkins v. Price Waterhouse, Jenkins was disabled by AIDS. He received long-term disability benefits for many years. Then he took a vacation to London. By the time he arrived he was so sick he spent the whole vacation in his hotel room. However, when his disability insurer learned about the vacation it reassessed his claim and terminated his benefits. He sued and lost. On appeal, the court pointedly noted that Jenkins was well enough to travel to London and thus, in its opinion, it was not unreasonable for the insurance company to assume he could work. So, yes, you can travel while receiving disability benefits. However, your travel, especially if extensive, may be construed to mean that you have a capacity to work – even when you do not. If you travel, you do so at your own risk.