Monday, August 4, 2014

Long-Term Care Insurance Fraud Claim -- Against the Insured/Claimant

There is a fair amount of debate about whether and when long-term insurance is the best way to plan for the possibility of disability requiring future care.  But, here is a first, at least in my experience:  a claim by a major long-term care insurer that a policyholder engaged in fraud in seeking benefits tied to proof of his alleged need for assistance with activities of daily living.  Undercover camera work was involved. 

According to the federal magistrate called upon to rule on the defendant/insured's motion to dismiss, here are the key facts alleged (minus the citations to the record):

"At some point not specified in the Complaint, Transamerica began investigating whether [Defendant] was able to perform his Activities of Daily Living without assistance.  To this end, Transamerica retained an investigator to conduct video surveillance of Jurin between January 5, 2012, and February 5, 2012.  Transamerica alleges that this 'investigator recorded [the defendnt] in engaging in activities inconsistent with his asserted limitations.'  An investigator conducted additional surveillance in 2013 from September 27 through 29, on October 5, and from October 7 through 12. Transamerica alleges that on these dates the investigator recorded [the defendent] performing various activities including walking uphill, walking while holding bags, entering and exiting a car without assistance, shopping, and doing yard work. 

 

On October 9, 2013, Dr. Mohinder Nijjar, a board-certified orthopedic surgeon performed an Independent Medical Exam (“IME”) of [the defendent] and, based on [the defendent's] self-reporting and self-limiting behavior, opined that [he] was unable to perform Activities of Daily Living without assistance.  Transamerica provided Dr. Nijjar with the investigator's video surveillance recordings and asked him whether the recordings altered the conclusions of his IME report. In December 2013, Dr. Nijjar issued a supplemental report in which he stated that, based on his observations in the videos, [the defendent] could engage in Activities of Daily Living without assistance, including washing, dressing, and feeding himself and walking. Dr. Nijjar further opined that Jurin was able to perform instrumental activities of daily living such as preparing meals, housekeeping, and laundry."
 
The full July 16 ruling denying the insured's motion to dimiss Transamerica's claims in the California case, No. C-14-0188: LB is available here

 

http://lawprofessors.typepad.com/elder_law/2014/08/long-term-care-insurance-fraud-claim-against-the-insuredclaimant.html

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