Videotaping IMEs

For decades, long term disability (“LTD”) insurance companies have routinely videotaped disability claimants both at and away from their homes, engaged in daily activities. The LTD insurers use the surreptitious surveillance to rebut the claimants’ claims of physical or mental limitations caused by their disabling condition. 

Courts have admitted the surveillance videotape based on the LTD insurers’ argument that if claimants are telling the truth about their medical conditions, then they should have nothing to hide. Conversely, if claimants are being dishonest, then the videotape is evidence exposing the dishonesty. 

There are now small high-definition cameras that are relatively inexpensive that make it easy to conceal videotaping. Disability claimants could and should use these types of cameras to take surveillance videotape when the LTD insurers requires them to submit to a so-called "independent medical examination" (“IME”), which everyone knows is anything but independent. Claimants could use the surveillance to rebut the validity of the assertions made by the insurer’s IME physicians. 

Since LTD insurers extensively embrace the use of surveillance videotaping of claimants, it would be hypocritical for the insurers to object to claimants using surveillance videotape of IME doctors. If the LTD insurers argue that they need videotape surveillance because there are dishonest people who commit fraud to reap the monetary gain from disability benefits, then the insurers have to concede that there are also dishonest people who commit fraud to reap the monetary benefit from conducting disability IMEs. 

A boilerplate clause in virtually every group LTD policy is the right of the insurer to conduct a medical exam of the claimant, the so-called IME. My experience has been that the insurer IME are doctors, usually with subpar credentials, who have had little success in making a living practicing medicine, and therefore need IME income. These doctors know that if they want to continue to have their income supplemented by IMEs, then they need to deliver reports that the insurers will like; otherwise, they will not receive repeat business. 

I have been unable to locate any rule, regulation, or statute that prohibits videotaping an LTD IME. In fact, every time I advise an LTD insurer that my client will videotape an IME, to which they always object, the LTD insurer has been unable to identify any law or contractual provision that would prohibit videotaping an LTD IME. Therefore, since courts have routinely accepted surveillance of disability claimants as evidence submitted by LTD insurers, courts should accept surveillance of IME doctors as evidence submitted by LTD claimants. 

There is no reason why a court should reject videotape evidence that shows an LTD IME did not tell the truth, or failed to do what the IME report claimed was done. Inconsistencies between an IME report and IME videotape are no different than inconsistencies between what a disability claimant claims and surveillance videotape purportedly reveals.

Unum Agrees Claimant Can’t Do Any Work

I represent a securities trader with psoriatic arthritis, whose long term disability (“LTD”) benefits Unum was looking to terminate after the definition of disability in its policy changed from own occupation to any occupation in October 2014. As far back as January 2014, Unum had been asking for medical evidence to support the change in definition, which I had been opposing as being premature. 

Unum found that the evidence I submitted supported that my client’s condition prevents him from being able to perform any relevant occupation. Consequently, Unum approved making continued LTD benefits. 

In its approval letter, Unum asked to be advised if my client’s contact information changed. I have instructed Unum countless times that it may not contact my client directly. Therefore, there is no need for Unum to be advised of any such change. What Unum is not saying is that it wants to know if my client relocates in case it wants to pay for surveillance as a means to terminate his LTD benefits, since the medical evidence does not provide a basis for doing so.

Remand Reversal

Administrative Law Judge (“ALJ”) Bruce MacDougall has retired from the Jericho Social Security hearing office. He had denied the Social Security Disability (“SSD”) application of one of my clients with numerous orthopedic and neurologic impairments, by rejecting the opinions of the treating orthopedist and pain management specialist, even though the opinions were objectively supported. 

The Appeals Council agreed that the ALJ failed to provide good reasons for rejecting the treating doctors’ opinions, and remanded. Among other things, the Appeals Council ruled that the ALJ failed to identify any evidence to support his conclusion that the claimant could sit on a “regular and continuing basis” for an 8 hour, five day a week, basis. Consequently, the Appeals Council rejected the ALJ’s decision, ordered a new hearing. 

A new ALJ heard the case on remand. As there was no evidence to contradict the opinions of the treating doctors, a vocational expert (“VE”) was asked if the claimant could work based upon the functional findings of the treating doctors. The VE concluded that the opinions of the treating doctors precluded even sedentary work. Accordingly, the claimant’s SSD application was approved. 

The remand was relatively simple because there was a great deal of work put into the papers submitted to the Appeal Council. I always prepare my appeal to the Appeals Council as if I were submitting a summary judgment brief in federal court. If the Appeals Council rejects the appeal, I incorporate my Appeals Council comments into the federal court complaint. Fortunately, the new ALJ essentially accepted the arguments made to the Appeals Council, which served as the basis for the remand, obviating the need to proceed to federal court.