Facebook Has a New Friend: Disability Insurers

Employee Benefits News examines legal developments that impact the employee benefits and executive compensation employers provide, including federal and state legislation, rules from federal...

By Jacklyn Wille

More than 2 billion people log on to Facebook each month, but for one group of people, the decision to log on can be a dangerous one. People receiving monthly disability payments are increasingly discovering that the insurers paying their benefits are reviewing their social media activities for information that could cast doubt on their disability.

Social media monitoring is a growing practice in which insurers or third party investigators review a person’s online footprint for information relevant to their claimed disability. In the past few years, Principal Life, Sun Life, Aetna, First Reliance Standard, MetLife, and Unum all cited social media postings in the course of denying or terminating an individual’s disability benefits.

In the most egregious cases, social media posts can completely refute a person’s claimed disability—think of the person who posts photos from a rock-climbing expedition despite claiming a debilitating back injury.

Other cases are more complicated. Is someone with a chronic condition like fibromyalgia capable of full-time work if Facebook shows them attending a wedding or baking cookies? What about someone whose LinkedIn profile claims she’s “actively seeking” employment opportunities during a period of claimed disability?

These questions are coming up more and more in the course of disability claims administration and even in litigation, attorneys and industry professionals told Bloomberg Law.

Booming Business

Some insurers use third-party investigative firms to run social media checks on people claiming disability. At those firms, business is booming.

Marshall Investigative Group, a fraud investigation company based outside Chicago, has seen its internet investigations group grow by 150 percent in the past year, Thom Kramer, director of internet presence investigations at Marshall, told Bloomberg Law. Kramer estimated that 60 to 70 percent of disability insurers are engaging in some form of social media monitoring.

Ethos Risk Services, a risk mitigation firm based in St. Petersburg, Fla., reported similar growth. Internet and social media investigations and monitoring has become the fastest growing business segment at a company that also specializes in special investigations unit (SIU) services, surveillance, and other desktop services like background checks and medical canvassing, Terry Boling, director of organizational development at Ethos, told Bloomberg Law.

Lawyers are taking notice of the rise in social media monitoring, too. Rebecca Grey of Grey Law Firm PC, a San Francisco attorney who represents individuals litigating against insurance companies, said social media now comes up in 60 to 80 percent of her cases. In about 15 percent of her cases, social media posts have become a central issue, Grey said.

“It’s ubiquitous now,” Grey told Bloomberg Law. “Five to seven years ago it would have been totally shocking, but now it’s every single claim.”

Even if a person’s social media history doesn’t shed any light on the extent of their disability, it can provide background information that could lead to more targeted investigations, including physical surveillance of the claimant, Boling said. For example, a Facebook post of a disabled person’s new puppy could lead to surveillance into whether the person can be seen walking the dog or playing outdoors.

Bloomberg Law reached out to six of the country’s leading disability insurers, and most declined to comment for this article.

Debra Conner, vice president of disability benefits for Sun Life Financial, confirmed that social media investigations are sometimes used in the course of reviewing claims the company believes may be fraudulent.

“If we believe there are indications of fraudulent activity, which occurs only in a small number of claims, an investigation is conducted and may include review of social media to confirm inconsistent activity,” Conner told Bloomberg Law.

Dollars and Sense

What’s driving the rise in social media monitoring? Cold, hard cash, for one thing.

A social media investigation is one-third the price of a single day of physical surveillance, Boling said. Moreover, looking into someone’s social media can give a better idea of whether physical surveillance would be worth the cost, he added.

Marshall’s Kramer agreed, saying that internet investigation costs “a fraction of what physical surveillance would cost.”

“It’s a very small price to pay for the potential information you could yield,” Kramer said. “We have some clients now where it’s standard procedure, it’s kind of a no-brainer that this is just what you do. If you’re not doing internet due diligence, in a sense you’re doing yourself a disservice.”

Another factor driving this rise in social media monitoring? The increasing prevalence of social media itself, particularly among older people who are more likely to receive disability benefits.

“Ten years ago Facebook was just becoming a thing, and now both of my grandparents have Facebook,” Elizabeth Patterson, director of digital investigations for Ethos, told Bloomberg Law. “Social media is very prevalent across society and it touches a lot of age groups, whereas 10 years ago it was mainly focused on college and high school kids.”

Cookie Baking, Holes in One

What kind of social media posts are relevant to insurers? It depends on what a person’s claimed disability is. Posts that show physical activities that are inconsistent—or consistent—with a person’s medical history are arguably the most relevant.

In recent cases, insurers have focused on social media posts showing claimants riding motorcycles, working out, baking cookies, traveling internationally, scoring a hole-in-one on the golf course, and going on ghost-hunting tours, among other things. Kramer said he’s even unearthed video of a disability claimant racing motorcycles at 150 miles per hour and posts showing claimants participating in roller derbies, skiing, skydiving, horseback riding, and boxing.

However, Facebook and other photo-heavy platforms aren’t the only places where insurers find relevant information. In one recent case, a truck driver’s disability benefits were terminated in part based on a LinkedIn profile suggesting he had experience in video production. His insurer cited this profile in arguing that the truck driver was capable of earning up to $65,000 per year in sales or public relations (a federal judge ordered the insurer to reinstate benefits, and the case is on appeal).

LinkedIn—the career-focused platform geared toward networking and professional opportunities—can be a particular pitfall for disability claimants, Grey said, because many profiles haven’t been updated in years.

“Most working professional people in this day and age have a LinkedIn profile where they’ll say they want to connect with others, work with people, whatever,” Grey said. “Clients will have put that up five years ago and forgotten about it, and the insurance company will print it out and say this person is looking for work while they’re claiming to be disabled.”

Even Yelp, the platform for reviewing restaurants, dentists, mechanics, and other local businesses, can come up in social media investigations. If a disability claimant owns a small business and responds to a negative Yelp review, that can be seen by insurers as actively engaging in the business, even if all other management responsibilities have been offloaded, Grey said.

Crossing the Line

Social media investigations can raise thorny ethical questions, particularly with respect to an individual’s chosen privacy settings. For example, can investigators create a fake name and profile to request access to a claimant’s Facebook page under the guise of friendship?

Absolutely not, said both Kramer of Marshall Investigative Group and Boling and Patterson of Ethos.

“Everything we collect is publicly viewable content,” Kramer said. “It does no good to find information if it’s done in an unethical manner and it’s just going to blow back up in your face.”

Patterson echoed this sentiment, saying that “any judge or halfway decent attorney would shut that down in a heartbeat.” She added that Ethos’s success is attributable in part to its reputation as an ethical operator—and that means no friend-requesting the people it’s investigating.

For her part, Grey said she had never personally encountered a social media investigation that she knew relied on subterfuge like a fake profile to gain access to a claimant’s personal information. However, she said she had reason to suspect that this tactic is sometimes used to gain initial access to a person’s information, even if the fruits of that search don’t end up in the claim file.

One tactic that appears to be common is reviewing the social media profiles of a claimant’s spouse or close family members. Grey said many insurers run credit checks on people claiming disability benefits, and those credit checks often include names of the person’s close associates.

Kramer agreed that reviewing social media posts made by people connected to the claimant wasn’t out-of-bounds.

“You can control your content, but you can’t control everyone else’s,” Kramer said.

Why Post at All?

If someone can jeopardize their disability benefits with a single click on Facebook, it raises the question: why post at all?

It might be that we just can’t help ourselves.

Researchers have found that humans have an intrinsic desire to share information about themselves. Doing so may even activate the pleasure centers in our brain that light up in response to food and sex, researchers say.

Patterson, the director of digital investigations for Ethos, said that some disability claimants are becoming more careful about what they share online, but usually only if they’re represented by an attorney.

“The whole thing about social media is that it feeds into a part of the brain that’s associated with other addictive behaviors, like drugs, sex, and money,” Marshall’s Kramer said. “People love to be admired. Many have the compulsion to be a celebrity and are compelled to post intimate details of their life for the world to see. In return, they receive likes and comments that give them instant gratification and a feeling of being important in society.”

Just a ‘Snapshot’

Social media monitoring can give insurers lots of relevant information at a bargain price, but it can also paint a distorting picture of a person’s physical abilities, one attorney told Bloomberg Law.

“The biggest problem with these social media investigations is that people on social media are only giving a snapshot of their lives at any given moment, and that is completely different from their ability to work a 40-hour-a-week job,” Matthew E. Pulle, a litigator with Pepper Law PLC in Nashville, Tenn., told Bloomberg Law. Pulle’s practice includes representing individuals litigating against insurers over disability benefits.

According to Pulle, people whose disabilities don’t involve consistent baselines of physical ability—people with conditions like lupus, multiple sclerosis, or an arrhythmia—are especially vulnerable to an unfair social media investigation. That’s because they may very well be unable to work a full-time job, despite having occasional good days that might be captured on social media.

“If I’m not having an MS attack, or if I have lupus but I’m having a pretty good day, I may very well go for a walk or go fishing or shopping,” Pulle said. “In fact, that’s probably what I should do.”

Pulle added that many people with disabilities have “at least some kind of mild depression,” and they should be encouraged to go out and socialize, rather than being penalized for it.

Grey echoed this point.

“A lot of people are homebound and disabled, and you can imagine that Facebook and social media are their only ways to socialize,” she said. “If they can’t do that, it makes everything worse, and it can even make their disability worse, which is exactly what the insurance companies don’t want to happen.”

Request Benefits & Executive Compensation News