Who’s That Guy Behind My Shrubs?

If you’re receiving long-term disability benefits but still engaging in physical activities, you should expect to be placed under electronic surveillance at some point by your disability insurance carrier. Your carrier may then use the video footage as a basis to terminate your disability benefits. If an administrative appeal of the benefit termination is not successful and suit is brought under the Employee Retirement Income Security Act of 1974 (ERISA), the surveillance video is a piece of evidence the judge would look at to determine benefit eligibility under the policy.

In some ways video footage may support a finding of disability and in some ways may not. For  example, at times a person may appear normal in the footage. His facial expression pleasant, he does not grimace, frown, or show any other signs of distress that might be expected from a person with his degree of disability. The activities shown, however, may be very limited. It would be important for a disability claimant to argue to the court that there is no footage of him exerting himself or performing ordinary household chores, such as carrying grocery bags, doing yard work, or washing a car. Footage that does not show the disabled person engaging in ordinary recreational activity could also be significant to getting the benefit termination reversed by the court.

In one recent case for example, the most strenuous activity captured on video was “John” with his son on a golf course for a period of approximately two hours. John’s activity was limited to conversing with others, driving the golf cart, and getting in and out of the golf cart to walk around. He was shown several times adjusting two black cushions to support his seating position while in the golf cart. He was also wearing what appeared to be a fanny pack but was identified as a tens unit. He was wearing the tens unit during other footage as well. It was successfully argued that as a whole the surveillance videos were neutral, so the termination of disability benefits was improper.

In contrast, there was a case our firm did not pursue, where the surveillance showed the claimant driving her car unassisted, patronizing tanning salons, banks, restaurants, clubs, and shops, walking up and down small flights of stairs, shopping at malls and video stores, shopping at grocery stores, pushing shopping carts, loading and unloading groceries, and walking without the aid of a cane, wheelchair, or scooter. This wide range of activity was inconsistent with the claimant’s stated limitations and was properly found by the court to justify the carrier’s termination of long-term disability benefits.

It is important in the litigation of these long-term disability cases to secure the carrier’s entire administrative record, including the complete video. The court will allow us to go after such evidence held by a 3rd party investigator when we show some procedural defect or raise a doubt that our client’s claim for disability benefits was given a genuine evaluation. In one such case, the investigator argued that the video submitted to the carrier was the complete video and nothing more existed. The court found this position “unconvincing” because the objection was not made until the case went to court. Moreover, the four hours of surveillance that was turned over occurred over a span of five days, with each day of observation spanning a time period of at least eleven hours each day. That means that there could have been, potentially, fifty-five hours of video surveillance. The court said, “[i]t does not seem realistic for a company that has been hired to do surveillance, and write a subsequent report, to only have recorded less than one hour of activity from each day. If that is indeed the case, then it would only further support plaintiff’s position that the methods relied on by [the carrier] may have lacked in a ‘full and fair’ assessment (as required under ERISA) of [claimant’s] disability claim and it would be prejudicial to make a determination on such inadequate records. Such a position appeared to only “hinder the fact-gathering process.” In conclusion, video footage, when complete, is a useful tool to substantiate a claimant’s disability.

Archives

Contact Us

FindLaw Network