The credibility of a claimant/plaintiff is the key factor in navigating a successful long-term disability claim. It always has been this way, and it always will be.
It seems simple, but that is not the reality. One of the core functions of counsel in LTD claims, is to provide advice and reassurance about how to demonstrate credibility and integrity. The most important advice is to reassure your client that giving evidence in an honest and authentic way will protect a claimant from attacks on credibility.
Having a physician confirm a diagnosis of a disabling illness or injury is not enough. A claimant carries the onus of proof to show that the impact of the diagnosed illness or injury is sufficient to meet the definition of disability, as defined in the relevant insurance policy.
Obtaining a supportive diagnosis is normally the easy part. Navigating the insurer’s assessment of function and credibility is complex.
An experienced LTD lawyer will warn a claimant about the likelihood of surveillance at some point during the adjudication process. There are different approaches to this. Some counsel advise clients not to engage in activities that could provide the insurer with ammunition. Some tell their clients to follow medical advice and continue with their normal activities, to the extent possible. We endorse the latter approach.
The emergence of smart technology creates a new type of surveillance – the type that a claimant puts in their pocket, or on their wrist / finger, every day. The popularity and accessibility of smart watches, smart phones, and smart rings can create challenges for claimants if they are not properly aware of the information they are creating daily.
While still rare, we expect that Insurers will soon begin to normalize requesting documents relating to wearable technology. For example, records from the Apple Health App and from the Oura Ring App. The timing of these requests will often come after the claimant has given evidence about their level of function, whether under oath, or during the application for benefits.
Wearable smart tech can provide insight into a claimant’s level of function. For example, if a claimant asserts that they have cannot exercise, but their phone, ring, or watch demonstrate that they are active, this will normally result in an insurer denying a claim based on contradictory evidence. The question of relevance of this type of data will likely depend on the evidence provided by the claimant about their level of function / activity levels.
Deciding not to engage the fitness app on your Apple Watch is not the answer. For example, your iPhone tracks your steps regardless of whether you’ve engaged the Apple Fitness App.
The point is not to discard wearable tech. The point instead remains that honest, credible claimants win cases. An experienced LTD lawyer can advise whether you are eligible to receive disability benefits after reviewing your medical files and the applicable insurance policy. We advise our clients that being honest about their activities will always nullify any form of surveillance. And a claimant will always have the opportunity to provide context about their activity levels.
In our experience, the easiest cases to resolve are those where a claimant has nothing to hide.
If you have questions about your LTD eligibility, concerns about surveillance, or want to ensure your claim is positioned for success, reach out to the MDW Law team for a complimentary consultation.