The McKennon Law Group PC periodically publishes articles on its California Insurance Litigation Blog that deal with frequently asked questions in insurance bad faith, life insurance, long-term disability and short-term disability insurance, annuities, accidental death insurance, ERISA, and other areas of the law. To speak with a highly skilled Los Angeles long-term disability insurance lawyer at the McKennon Law Group PC, call(949)387-9595for a free consultation or visit our website atwww.mckennonlawgroup.comand complete a free consultation form.

 

Are you active on social media? Do you have a Facebook? Snapchat? Twitter? Instagram? LinkedIn? Do you track your daily activity in fitness or health apps? Do you post to a blog hosted by Tumblr or WordPress? If you answered yes to any of these questions, you are not alone. As of September 2016, Facebook reported 1.18 billion daily active users on average. 150 million people use Snapchat a day, while Twitter has 140 million daily active users (Often including our current President, Donald Trump). Further, many people post daily activity on various other social media platforms and each second on the internet sees 6,000 tweets, 40,000 google searches and over 2,000,000 emails.

But, what does this have to do with disability insurance?

This article explains how social media may impact a disability insurance claim. First, we briefly explain some disability insurance basics: what disability insurance is and what insurance companies may typically require for “proof of claim.” Next, we discuss how investigations conducted by insurance companies may include a search and catalog of the insured’s activity on social media. Last, we provide a list of general best practices to follow should the insured choose to be active on social media. The reason this is important: we have seen numerous disability insurance claims denied by an insured’s use of social media.

What is disability insurance?

Disability insurance provides substitute income when, because of an injury or illness, the insured becomes disabled and unable to earn a living. Typically, disability insurance policies cover a portion of the insured’s earnings when he or she becomes “totally disabled.” Under most policies, the insured is totally disabled when he or she is unable to perform the substantial and material duties of the insured’s own occupation. Just like health insurance, you can enroll in disability insurance through an individual policy or, if your employer offers, through an employer-sponsored group plan. Some plans, usually employer-sponsored group plans, will provide income coverage for the insured’s own occupation for one or two years. After one or two years of coverage, the policy’s definition of total disability may change, requiring that the insured be unable to perform the substantial and material duties of any occupation at your level of education and experience.

What is typically required for proof of claim?

When an insured becomes disabled, he or she must submit proof of claim (sometimes called “proof of loss”) under his or her long-term or short-term disability insurance policy to the insurer. What this entails varies, but the proof of claim requirements for a specific plan or policy are usually located in either the plan/policy’s “Definition” section or in the section that outlines the claim process. For example, the following may be proof of claim requirements in a long-term disability insurance policy:

• Regular care by a physician;
• Proof of monthly earnings;
• Date of disability;
• Documentation of the disability;
• The extent that your disability prevents you from performing your regular occupation; and,
• Medical evidence supporting the disability, including the name and address of any treating hospital, institution, or physician.

The insured should always comply with the proof of claim requirements. Failure to comply with the proof of claim provisions may result in the denial of an otherwise valid claim.

How can social media impact the success of a disability insurance claim?

Once you file a “proof of claim,” the insurer begins gathering information, typically referred to as an “investigation” pursuant to its duty to fully investigate all insurance claims. The information collected may include medical records from attending physicians, medication records from pharmacies, a job description from the employer and occasionally a review of the insured’s social media and even surveillance. Surveillance may include what may be considered more traditional “Sherlockian” investigation (i.e., an undercover video recording of the insured’s daily activities for a certain period of time). The insurer may then use this footage to attempt to show that the insured is not actually disabled to the extent that he or she claims. However, given the increase in activity on social media noted above, many insurers are looking to social media as a cheap and easy way to investigate the validity of a claim.

This can harm an insured’s claim for a variety of reasons, including the fact that almost anything can be taken out of context and twisted to look worse than the reality of the situation. What do we mean by this? Imagine that you are a marketing strategist for a large Silicon Valley company. You received a top-notch education and work hard. As a result, you have progressed through the company’s ranks to a senior level position. Because your work requires intense concentration and sitting for long periods of time staring at a computer screen, a debilitating back problem could mean the end of your career. Suddenly, an illness or injury results in your inability to sit or stand for more than fifteen minutes without incapacitating pain. Because of your injury, spending eight-to-ten hours in front of a computer screen, five-to-six days a week, is no longer feasible without pain medication. However, the pain medication makes you incapable of concentrating and you cannot handle the same workload because of it. Further, the usual stress of your job is only heightened by your inability to perform, which in turn, heightens your pain.

Once you file your disability claim, the insurer may order surveillance of your activities. To continue the above example, imagine the social media search shows an image of you attending a holiday event with your former colleagues. In the image, you have a glass of champagne and you are smiling, sometimes sitting and sometimes standing. To you, this image may show that you went out to an event with your old colleagues because you miss them. To the insurer, this looks like someone who can sit and stand for long periods when it suits him. Sitting clearly does not cause you pain because you are smiling. Further, you may not be taking your pain medications.

Best Practices on Social Media

The above hypothetical is representative of similar analogous situations that frequently occur, but illustrates what just one picture on social media can do to a disability insurance claim, and best practices on social media can go a long way. Best practices may include removing, canceling or suspending all social media accounts. However, if the insured wants to stay active on social media we recommend using the strictest privacy settings. We also recommend that the insured be mindful of the potential that his or her personal information, including photographs, posted videos and words, are accessible to the public and the insurer.

The following are precautions to take while filing a claim:

1. Up the privacy settings on all social media.
2. Do not post photos, videos or other depictions of yourself.
3. Refrain from describing activities, especially those outside the home.
4. Do not connect or “friend” unknown people.
5. Do not talk about the claim on social media.
6. Do not make comments about the condition on social media, as these can be used to show inconsistency.
7. Do not discuss meetings with your lawyers on social media, as this can be used to challenge attorney-client privilege.
8. Be mindful that any photo posted can be misconstrued and potentially damaging to the claim, including “party” photos like the one in the example above that may be used to show the insured engaging in reckless or irresponsible behavior.
9. Avoid participating on any blog, chat room, or message board concerning the insurance company or your claim.

In the future, you may have to be cautious regarding a broader spectrum of information released to third party platforms, such as health applications on your phone that track your daily activity or metadata collecting applications that reconstruct information based on all of the available social media sources. For example, the iPhone has an app called “Health” that is preinstalled when you purchase your phone. People use the Health app to track their daily activity, including steps, nutrition, sleep and more. You can also sync the Health app with other products that track daily activity and vitals, like the FitBit. One example of a metadata app is the “Trial Drone” app, which works as a social media aggregator. The Trial Drone app allows you to pick a location and a date, and then Trial Drone aggregates all the social media data tagged to that moment to reconstruct that date and time. Sean McDonald, a trial lawyer and former private investigator, launched Trial Drone in May of 2016 and lawyers are already talking about the implications for insurance disability claims. To see an article discussing Trial Drone in detail, and the potential implications, see http://abovethelaw.com/2016/05/the-view-from-up-north-new-legal-app-trolls-social-media-for-evidence/.

Again, it is generally good to be aware of the above while filing a claim for disability insurance, particularly given the relative ease of access of information online and how much of it is posted voluntarily. Of course, do not be afraid to socialize, but do be aware of how it may be twisted and used against you when you decide to post it to a public forum like Facebook.