Disability insurance claimants are attracting online ‘friends’ they could do without. There has been an increase in the number of cases involving the premature termination or denial of long-term disability insurance benefits owing to a claimant’s imprudent use of social media. Now, the administrative service contracts of many disability insurance plans include, as a performance of these services, the actual monitoring of the Facebook, Twitter, and other online accounts of disabled claimants. In other words, plans are now paying investigators to watch everything a claimant posts online.

 

Cases involving ERISA disability insurance claims reflect this reality. For example, in Wicks v. Sun Life Assurance Co. of Canada, U.S.D.C. Case No. 2011-cv-01086 (W.D. Mich. 2013), the insurer hired a paid private investigator to closely monitor postings on the plaintiff’s Facebook page. The private investigator, while monitoring the plaintiff’s online Facebook postings, apparently captured images where she had boasted about building a loft in her child’s college dormitory and taking extended vacations. Because the plaintiff’s disability claim was based largely on subjective complaints of her physical limitations, the complaints were deemed inconsistent with her Facebook postings. The Court upheld the denial of the disability claim.

 

This is a tough situation. Losing the ability to work is, itself, a hardship, particularly in our society where so much of our identity is derived from our employment. For a person receiving disability insurance payments to replace lost income, the question ‘what do you do for a living?’ may cause feelings of pain, embarrassment, and even anxiety. Disability claimants do not want to be ‘disabled.’ Most work well beyond a time when they should, out of the social stigma attached to no longer working. The idea that a mother of a college age child, who is occupationally disabled, would boast on Facebook that she somehow contributed to building a loft for her child makes a certain sense when you understand the world of disability. For her network of social contacts, she may have been simply announcing, ‘I still count,’ or ‘I matter.’

 

Still, the post cost her dearly. The plaintiff in Wicks lost her benefits, and from the facts, it appears she had several years until retirement. Despite the fact there might be different motivations as to why a claimant posts certain comments online, the minimal or discontinued use of social media during a claim of disability is highly recommended.

 

On October 28, 2014, Mary Williams Walsh, a New York Times journalist who has been chronicling the nation’s public pension crisis, reported on a case in which JJ Conway Law is one of the law firms representing the plaintiffs.  Appearing on the front page of the New York Times Business Section, the paper published an in-depth account of two cases pending in Detroit, Michigan against the plans’ actuaries.  (http://dealbook.nytimes.com/2014/10/28/lawsuit-contends-consultant-misled-detroit-pension-plan/?_r=0).

The article entitled, Lawsuit Contends Consultant Misled Detroit Pension Plan, states:

The lawsuit seeks to have the pension plan made whole, in an amount to be determined at trial, and to have Gabriel Roeder enjoined “from perpetrating similar wrongs on others.”  Lawsuits like the one [the Plaintiff] has filed have also been brought against Gabriel Roeder by members of Detroit’s pension fund for police and firefighters, and the fund for the employees of surrounding Wayne County. The plaintiffs cite damage growing out of Detroit’s financial collapse, but the litigation may have implications far beyond southeastern Michigan because of Gabriel Roeder’s status and influence in the world of public pensions. Its method for scheduling pension contributions is exceptionally popular and widely used by governments, although federal law does not permit companies to use it.

Serving together with the law firm of Mantese Honigman, JJ Conway Law is representing municipal retirees in litigation involving the City of Detroit General Retirement Systems, the City of Detroit Police & Fire Retirement System, and the Wayne County Employees Retirement System.  The claims assert that funds’ actuaries did not adequately account for changing economic conditions facing the municipalities and did not account for the massive losses incurred in the administration of funds when making actuarial assumptions and making funding recommendations. The firms successfully resolved claims against the Trustees of the two City of Detroit pension systems for losses associated with the widespread use of alternative and unregulated investments.