Court Says LTD Insurer Reliance on Surveillance Video Reasonable

At our law firm, we help people in their claims for short- and long-term disability insurance benefits based on a variety of impairments. As we have written about in this space, disability insurance companies now regularly use video, physical and Internet surveillance of claimants to gather evidence that might undercut their claims.

Surveillance methods that insurers use include:

• Social-media monitoring and other Internet investigative techniques
• Traditional investigation, which could involve photographing and filming claimants in their daily lives
• Drone surveillance

There are companies specializing in this kind of surveillance that contract with disability insurers for online or physical surveillance services.

Insurers might use surveillance evidence not only to counter medical and vocational evidence in initial disability-insurance claims, but also to justify terminating benefits, especially in long-term claims. Courts across the country routinely analyze whether insurer use of surveillance evidence is reasonable in a variety of claims.

In a previous post, we described the case of Richard Wagner, an LTD claimant whose benefits, which were based on a leg injury to a man who already had paraplegia, were terminated after almost three years of payments. The U.S. Court of Appeals for the Sixth Circuit found that the termination of benefits based on a doctor’s review of surveillance video of Wagner’s activities was wrongful and ordered his benefits reinstated.

The court said that the brief surveillance clips were “weak evidence of anything beyond those minutes,” considering that the claimant experienced severe pain on an intermittent basis. In addition, the reviewing doctor did not physically examine Wagner and all professionals who did so felt he could not work.

The court also expressed displeasure with the reviewing doctor concluding that Wagner was lying based on reviewing the surveillance and other records.

Going the other way, the Eleventh Circuit in a recent decision credited video surveillance evidence in the LTD termination case of O’Leary v. Aetna Life Insurance Company. Claimant Timothy O’Leary had received LTD benefits after a motorcycle accident for nine years at which time Aetna stopped paying based in part on surveillance showing him driving, “tot[ing] a garbage can to his garage” and dancing while out to a nightclub.

The court found that Aetna’s termination was reasonable and not arbitrary and capricious in part because of video-surveillance evidence, which it was “entitled to rely on.”

Because surveillance evidence can be so important, any claimant who suspects his or her insurer has engaged in such tactics should consult with an experienced attorney as soon as possible.