Last month the CBC posted an article about Toronto woman, Alicia Micallef, who was a subject of surveillance by her insurer. She had sustained a concussion after hitting her head at work.
The Ontario Workplace and Safety Board (WSIB) hired private investigators to follow and secretly record Ms. Micallef in her daily activities, hoping to show that she was lying about the nature of her injuries.
As a result, she was denied her benefits and fought through the legal system for years, after being accused of lying, only to be eventually acquitted.
In the article Ms. Micallef described to GO Public
"It's really disturbing. There's no limit to what they can do, how close they can follow,"
Insurance Surveillance is More Common Than You Think
Unfortunately, Ms. Micallef's experience is not unique. Public and private insurers often hire investigators to take video surveillance and to capture social media information about their claimants. The hope is to catch them in an act that is inconsistent with reported injuries.
For claimants, this feels like a painful intrusion into their personal lives. It also is yet another way that they feel dismissed and disbelieved by their insurance companies.
Workers in Ontario spend years paying into insurance policies, either through the Long-Term Disability and WSIB contributions at their place of employment, or through their car insurance premiums.
The expectation is that when you are injured, those companies should take care of you. So why are those very companies, who are supposed to help you, now surveilling you?
For clients, this feels personal; it is offensive. However, for the insurer, the decision to hire surveillance is often based on a mathematical calculation, especially for younger claimants. If they can get someone off the books, it reduces the long-term pay outs for the company.
The goal of surveillance is to try to catch people in a lie. To try to catch people outside their therapy and doctors appointments, doing something they claimed they could not do. The insurers try to use surveillance footage to discredit the claimant.
Of course, we all want to remove fraud from the auto insurance system, but genuinely injured claimants may feel surprised to learn how frequently insurers use surveillance as a business practice.
So what can you do if you find yourself a subject of insurer surveillance?
1. Know Your Rights
What are the rules regarding surveillance in Ontario?
Private insurance providers must follow the rules of the federal Personal Information Protection and Electronic Documents Act when conducting surveillance.
The Ontario Trial Lawyers Association also has the following information regarding the limitations of surveillance:
"Investigators will often sit in their car outside your home or workplace to capture video footage of you. Investigators will sometimes be advised of a medical appointment or examination for discovery because they know you can be seen there. They should not film in private spaces like your home or backyard.
Investigators are not allowed to use a ‘pretense’ – this means they should not talk to you while pretending to be someone else. They should not enter private spaces – like a gym, for instance – by pretending to be a member."
Unsure if these rules are being followed? Speak to a qualified lawyer to understand your rights.
2. Provide Context
The main issue with surveillance as evidence is that it is only reflective of one perspective; of one snapshot in time. In one case where a client was videotaped at a park with her Granddaughter, the insurer tried to claim that this showed the client was capable of more than she claimed.
Fortunately, the Personal Injury lawyer in this case was able to show that the client was disabled by extreme pain and fatigue in the days following the trip to the park, unable to participate in many activities of daily living.
How many of us, in times of illness or disability, overdo it with family and friends? We are told to "put on a brave face". We are often motivated to try to be as "normal" as possible around loved ones, especially children, because we don't want to burden our family with our pain and symptoms.
This is a completely natural reaction but it can have consequences later in the day or even the next day. This is why providing context matters.
What impact did the over-exertion have on the client's pain and level of function?
3. Technology as a Solution
Insurance surveillance provides evidence from a third-party that has a time and date stamp. If technology is the problem, could it also be part of the solution?
The limitations of surveillance are mainly due to the fact that they are only getting a small snapshot of the client's day. The public spaces where surveillance takes place are often where clients are trying to "tough it out".
However, what happens when they go inside their home and close the door? In responding to surveillance evidence, clients and team members have relied on anecdotal evidence.
"Yes, I was grocery shopping that day, but when I went home, I was too tired and in pain to put the food away. My worker had to help me to bed."
These stories are valuable but they are the client's word against the video. What if we could also provide objective evidence, GPS and time-stamped, as a collateral report?
Here at Key Metrix, we train front-line staff to use a secure mobile interface (Alytx) to track this valuable contextual information. We do this in Real-Time.
Support Workers, clients and family caregivers, are trained to use Altyx, and can easily track pain, fatigue, level of function and participation in daily living tasks. We monitor these inputs and can produce this as evidence in response to a surveillance report.
Do you anticipate that the surveillance will be presented to a client in an insurer examination? The client can be provided with their Alytx report in advance to share with the assessor. This will show visualized, objective information about the client's level of function and symptoms around the same dates and times surveillance was being used.
With a GPS and time-stamped platform, Alytx produces valuable data to show what was happening in the home and community at the same time the client was being surveilled.
The information gathered by Alytx is contextual but non-intrusive to the client. It is tracked by support workers and caregivers, who previously relied on hand-written shift notes. It is searchable, objective and secure.
It is imperative that clients have a supportive team to help them understand their rights and advocate on their behalf. Clients should also be encouraged to seek counseling support if the surveillance is impacting their mental health.
The rehabilitation team can help reduce the impact and presence of surveillance by providing excellent, objective and verifiable reports. These assessments and progress reports should clearly outline the client's diagnosis and functional limitations, in a manner that is consistent with the medical evidence on the file.
Being the subject of surveillance is stressful and upsetting for serious injury survivors. During a difficult time in their lives, when they need help, they find themselves disbelieved and the subject of suspicion. It's an unfair system, and clients need supportive teams and advocates to help them know their rights.
For further reading on surveillance....
https://www.ontariocourts.ca/decisions/2015/2015ONCA0110.pdf
https://www.injurylawyercanada.com/blog/why-insurance-companies-may-have-you-under-surveillance-and-how-you-can-lose-your-long-term-disability-compensation/