Social-Media Surveillance Of Disability Claimant’s Activities

We recently posted information in this space about how disability insurers use surveillance to investigate the lifestyles of their disability claimants to try to uncover evidence that the claimants’ activities are inconsistent with the medical conditions underlying their disability claims. In other words, a video of a claimant mountain climbing might suggest they are not disabled from congestive heart failure.

But usually the cases are much more controversial than that. For example, is looking happy at a family party evidence the person is not severely depressed? That kind of picture is commonly available on Facebook or other social media sites. As we have explained, many insurance companies now use electronic surveillance techniques, including the use of social-media monitoring.

The use of social-media evidence as one basis for denying a disability claim

On Nov. 15, the U.S. District Court for the Southern District of Ohio released an opinion that sheds light on how courts are viewing social-media surveillance evidence when used as the basis of denying disability claims. In Wehner v. Standard Insurance Company, the claimant, a financial planner, filed a claim under his group disability insurance policy alleging that he could no longer work in his job because of hip and back pain, headaches and ulcerative colitis.

Standard denied his claim initially and on internal appeal. Wehner asked the court to review the denial on several legal grounds, including an allegation that the insurer should not have relied on Facebook postings of him instead of on the medical evidence. Facebook posts showed him fishing, gardening and working on construction projects at home.

Wehner argued that the Facebook posts suggested a higher activity level than was actually performed – that he had help with the construction work, that he fished less frequently than previously and that the gardening was light.

Standard responded arguing that it could use evidence of the claimant’s activity level that show “functional capabilities, especially when his activities are inconsistent with his claimed symptoms and purported functional limitations.”

Arbitrary and capricious standard of review

The court reviewed the claim denial under the arbitrary and capricious standard because the insurance policy gave discretionary authority to the plan administrator to decide the claim, as required in court reviews of denied claims in federal Employee Retirement Income Security Act cases, or ERISA cases, the federal law that applies to most group policies, including Wehner’s, a policy obtained through a professional association.

The court explained that when it reviews a claim denial under the arbitrary and capricious standard, it need only confirm that the denial was based on substantial evidence from “a deliberate and principled reasoning process.” To determine this, the court must consider the medical evidence and both sides’ arguments.

In this case, there was an inherent conflict of interest because the insurance company was administering the claim and also responsible for paying the claim. As such, the court had to consider the conflict as a factor in applying the arbitrary and capricious standard. The court said that the claimant presented no meaningful evidence that Standard was dealing in self-interest.

Court decided that Standard’s use of social-media evidence was not arbitrary and capricious

The court found that Standard’s reliance on the social media was not arbitrary and capricious because there were “numerous actions … inconsistent with Plaintiff’s reported pain” and because the insurer also relied on an “abundance” of additional objective evidence.

However, the court noted that insurers must be careful in their use of social media, stating that “social media posts lack context and can easily be misinterpreted … portray limited information, generally only that which a person wishes to share with the public … [and are] minimally informative as to a person’s medical condition and their ability to perform their work.”

If you have filed a disability insurance claim and think social media posts may unfairly influence your insurance company, please contact us at 954-989-9000 or through our website www.DiLawGroup.com for a free consultation.