The Interview and Its Dangers
The insurance company’s interview is a danger area for long-term disability claimants. The interviews commonly occur at the beginning of a claim, or as part of a general reassessment for an existing claim when the insurer may be looking for an opportunity to stop paying the claim. In appealing long-term disability appeals for my Connecticut and Westchester clients, I often need to deal with a damaging interview that occurred prior to my involvement in the matter. If you follow the Rule discussed below, and keep in mind what I discuss in this article, the attorney handling your long-term disability appeal won’t have try to fix the harm that can result from a claimant interview.
Prior to COVID, it was common that the interview would be in-person at the claimant’s house. This gave the insurer lots of information. For instance, if you claim severe back pain but have a tidy house and tell the interviewer that you clean the house yourself, there is a good chance the insurer is going to argue that if you can clean your house, you must not be very impaired by your back condition.
Post-COVID, the interviews now happen over the phone or Zoom, which gives you more control over what the interviewer sees, but you still need to be careful. As you would expect, one purpose of the interview is to observe you and see if you do anything that is inconsistent with the limitations you claim. If you claim you can only sit for fifteen minutes but sit still for an hour in the interview, then the insurer is unlikely to believe you really have a sitting limitation. Of course, you may be having a good day that day, and your ability to sit for an hour when you are rested doesn’t say much about your ability to sit for an hour after working a full week. But, this can give the insurer an excuse to reject your claimed sitting restriction.
What you may not realize is that one purpose of the interview may be to set you up for the surveillance. In many of the interviews, the interviewer appears to push the claimant to claim greater impairments than the claimant has claimed in the past. You may think that is helpful for you, since the more impairments you have, the less likely it is you can do your job.
It is not helpful, and it can scuttle your claim. The insurance company will typically conduct surveillance after the interview. If you do anything in the surveillance that is at all inconsistent with what you claim your disabilities to be, your claim is likely to be denied. Even if the activity shown on the surveillance is consistent with you not being able to do your job, the insurer will use it to discount everything else you say. For instance, if your job requires lifting 30 pounds, it shouldn’t make a difference if the surveillance shows you lifting 15 pounds. But, if you claimed in the interview that you could only lift 5 pounds, the insurer will assert that you lied about not being able to lift 15 pounds, and that this discrepancy means that nothing you say about your impairments can be believed.
How do you avoid this? By following the same rule that I give to my clients before testifying in court. In both instances, you want to appear to be credible by answering the questions, but you do not want to be pushed around in making your responses. So, here’s the Rule you should follow to avoid damaging your claim in the interview:
There are some corollaries to the Rule:
Be particularly careful in responding to leading questions, that is, questions that can be answered by a yes or no answer. Before answering, make sure your answer applies to each part of the question. It is a good idea to always ask for leading questions to be repeated to make sure you understand them.
Lastly, if you think you said something in the interview that you think could be misconstrued, you can send a follow up statement to the insurer addressing that issue. Telling the truth is the most important thing, and following the Rule will help you avoid unintentional misstatements that could be construed as lies. Don’t let the interviewer push you around or lead you into saying something that is not the absolute truth. By following the Rule, you will have your best chance to avoid this. So, during the interview, be calm, relaxed, focused, present in the moment, and listen to those questions!
I discuss in When Should You Tell Your Employer About Your Chronic Condition? how your potential long-term disability claim could be affected by what and when you tell your employer about your chronic health condition. Joshua Goodbaum, who I think is one of the most effective plaintiffs’ employment lawyers in Connecticut, recently posted a great article (at https://garrisonlaw.com/taking-fmla-leave-what-you-need-to-disclose-to-your-employer/) on what your employer is allowed to ask about your health condition when you request family and medical leave under either Connecticut or federal law. Medical leave is another tool for managing the transition from working with a chronic illness to making a long-term disability claim, and the article is a great guide for handling one of the more fraught aspects of asking for medical leave.