For at least 20 years I’ve been writing articles about the “semblance ,or visual presumption of disability.” It is on this one point that I believe most insured claim me to be “all wet.” Still, I do feel compelled to keep reminding people of the truth, and maybe save a few claims along the way.
When insureds, and their physicians, report you are unable to perform your job, or are totally disabled, the insurance company presumes you to be somewhat visually disabled. This doesn’t mean you have to stay in bed with the covers up to your nose, nor does it mean you can go about your usual activities as before. What it does mean is that any number of physical or mental activities can be interpreted as work capacity, via surveillance.
Yes, I know there are many attorneys out there who hang their hats on “own occupation” definitions as defenses of pushing the envelope on medical restrictions and limitations, but in the end juries can’t “unsee” surveillance tape of a plaintiff who is performing activities reported as disabling.
This bothers me when even one of my clients reports hiking in the mountains when I know she’s also reporting severe back radiculopathy and herniations with pain. Someone else reports to their insurer they have shoulder pain severe enough not to be able to do surgery and yet she went on a plane to a medical conference pulling her suitcase. Another walks around the Mall for 4 hours with her grandchildren after reporting she is severely fatigued. I had a client years ago tell me (after his claim was denied) that he’d been giving skiing lessons, and yet another participated in cross country motor racing. Still others, hiding on the fairways, mind you, continue to play golf.
Before I go on, let me mention the obvious. Insureds and claimants should never exceed reported medical or mental restrictions and limitations reported to any insurance company. The obvious is, if the R&Ls are accurate, insureds should not exceed them, if only for their own health. If the R&Ls are exaggerated, they shouldn’t be.
When caught (observed), most insureds give many excuses like, “Yes, I did walk around the Mall with my granddaughter but I suffered for weeks after that.” Nope, won’t work. An insurance company will presume, “do it once, do it always”, and it doesn’t care if you hurt afterwards. Another excuse frequently used is, “I have good days and bad days”. Well, so do healthy people who work every day.
What do you think a jury will conclude when they see you performing the very activities you, and your physician, reported you can’t do? Seeing is believing and they can’t unsee your functional capacity on a DVD.
There are also those who think they are excluded from the karmic laws of the universe we call “Murphy’s Law”, which says that the worst thing will happen at the worst possible time. If you think YOU WON’T GET CAUGHT, it would probably surprise you to know how many people actually do get caught by surveillance.
Please. We are heading into summer when it will be very tempting to exceed restrictions and “suffer heroically later.” This is an important point that I am not wrong about. In order to receive disability benefits you must at least show a semblance of impairment, particularly the one(s) reported to the insurance company. When you file a disability claim, life will not be the same. If you make it look the same, your insurer may conclude you are not disabled.
Is this the risk you really want to take?
