My specialist has recommended a wearable device (Garmin, Apple Watch, Oura Ring etc) so I can manage my activities better so I stay within my energy envelope and don’t over-exert myself as this actually makes my condition worse. If I share the data from my fitness tracker with my specialist, I am pretty sure he will mention something in my medical file. After every appointment with my specialist I also share a copy of my specialist’s report/notes with my insurance company, so they’ll find out if I’m using a tracking device 24/7. My question is; can my insurer ask for a copy of all the data from my wearable device?
I did see an old post where David had responded that the insurer could demand that data if the person had a lawsuit against the insurer, but my question is can they ask me to provide that information even if I’m not suing them?
If they get into a dispute with you over whether you qualify for LTD it would be discoverable if it’s relevant to whether or not you are still disabled. It would come up if they stop paying you.
OK, so I guess they won’t require me to provide the data unless it becomes a lawsuit.
The tricky part is that a strategy known as “pacing” is proven to help people with fatiguing illnesses where the person can become sicker from over-exertion. It’s also important to monitor my heart rate and the recommended way is to use a wearable fitness tracker. At the moment, if I were to use a fitness tracker, I think it would actually back up my disability with the poor biometrics (sleep etc) but as my condition improves (which I am hoping it does), the biometrics should also reflect that. Also, when someone does this strategy “pacing”, since you’re avoiding activity levels that make you worse, the biometrics may be deceiving in that they seem ok, but that’s because the person is intentionally not over doing it.
Also, some trackers have a feature that shows “recovery” from the previous day which will give advice on whether you may need to rest more that day or if it’s a good day to push yourself a bit. But this information does not always correlate with symptoms and should be taken with a grain of salt.
My concern is that the insurer could misinterpret the data and use it against me, though I’m not exactly sure how they would do so, other than misinterpreting the “recovery” data, and saying that my sleep is improving (if it does in fact improve since I’ve had insomnia for years). Even if I improved a lot, I wouldn’t be going out every day, doing daily work-outs etc so they won’t find any surprising data.
I think I am nervous as I have my 2 yr mark coming up so once the COD(change of definition) occurs, they could find some evidence in my wearable data to claim that I could do a sedentary, part-time, work-from-home job with flexible hours, when I am still too impaired to do any occupation. I’m in a bit of a dilemma as this strategy using a fitness tracker would be very helpful in my recovery but at the same time I don’t want it to backfire on me if down the line I have to fight them in court.
They might in a lawsuit situation but I doubt it would be enough on it’s own for the insurance company to disprove your disability.
It’s part of your treatment.
I am not a lawyer but I would wear one if I thought it might help me.
You could always do the free consult with Resolute if you want a legal opinion.
Thanks, yes it’s part of my treatment which I think would be helpful. I think I may as well try it and I could always stop using it if I didn’t want to continue for any reason.
Thanks Caro for your input. At first I was wondering if I’m walking myself into a trap but having thought over it, I think I should go for it, as my focus is on getting better. As long as the wearable data is consistent with the activity levels (and sleep time) I am reporting to my insurer, I think it should be ok.
I am a little late answering this question, but my advice to people would be as Jammer said. To wear the device if it would be good for our treatment or health. It possible it would have to be disclosed during litigation but not always, and if so, it would still be kept private. It could also help your LTD case. I would not be concerned about it.
Summary
David Brannen
Disability Lawyer with Resolute Legal
The response posted above is based on the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with a lawyer, fully explain your situation, and allow the lawyer enough time to research the applicable law and facts required to give an adequate opinion. The basic information provided above is intended as a public service only, a full one-on-one discussion with a lawyer should be done before taking any any action. The information posted on this forum is available to the viewing public and is not intended to create a lawyer client relationship with any person. If you want one-on-one advice, please click here to request a free consultation or call toll free 1-877-917-7050 to speak with a member with our disability claim support team.