Many insurance companies use video surveillance in an attempt to "prove" that participants in ERISA-governed disability benefit plans are not "disabled" within the meaning of the plans. However, often times, the surveillance video footage doesn't really have any bearing on the individual's claimed disability. Insurance companies frequently require participants to submit to independent medical exams during the benefit application and appeal process and/or after benefits have already been granted. The companies then hire private investigators to take video footage of the participant the day of the exam. The investigators, in turn, videotape the participants leaving their homes, driving to the appointments, and returning home. Frequently, the video footage will show that the participant stopped to pick up a few groceries or dry cleaning on the way home. The insurers then argue that the video footage is proof that the participant is not "disabled" from performing their job duties.
Courts have historically been persuaded by this video evidence, even where it doesn't show the individual doing anything inconsistent with the claimed disability (i.e., just because one can drive to an appointment or carry a few groceries, doesn't mean that one can sit in front of a computer for the entirety of an eight hour work day). A recent case from the United States Court of Appeals for the First Circuit (the federal appellate court covering most of New England) shows that at least some courts will not be persuaded by such tactics. In Maher v. Massachusetts General Hospital Long Term Disability Plan (1st Cir., No. 10-1321, 12/7/11), the First Circuit ruled that a long-term disability benefit plan administrator gave too much weight to video surveillance of a plan participant's activities when it reviewed the participant's benefit claim, and thus the participant's claim had to be remanded to the administrator.
By way of background, Deborah Maher received long-term disability benefits through the Massachusetts General Hospital's long-term disability plan for chronic fibromyalgia. After five years, the plan's claim processor terminated Maher's benefits because surveillance videos showed Maher engaged in physical activity and playing with her son. The claim processor said that Maher was not totally disabled and could perform a sedentary nursing job. On administrative appeal, the plan administrator—Partners HealthCare System Inc.—upheld Maher's benefit termination. Maher then filed a lawsuit U.S. District Court for the District of Massachusetts. Applying a deferential standard of review, the district court upheld the plan's termination of Maher's benefits. In vacating the lower court's motion for summary judgment for the plan, the First Circuit failed to find any inconsistency between the video surveillance and the participant's claim of total disability. After working as a registered nurse, Maher subsequently appealed to the First Circuit. The appeals court was not persuaded, stating that Partners' video surveillance of Maher “confirm[ed] her lifestyle as generally housebound.” According to the court, 30 minutes of playing with her child in 90 hours of surveillance could not support the termination of Maher's benefits. The weight given to surveillance depends on both the amount and nature of the activity, the court said.
Courts have historically been persuaded by this video evidence, even where it doesn't show the individual doing anything inconsistent with the claimed disability (i.e., just because one can drive to an appointment or carry a few groceries, doesn't mean that one can sit in front of a computer for the entirety of an eight hour work day). A recent case from the United States Court of Appeals for the First Circuit (the federal appellate court covering most of New England) shows that at least some courts will not be persuaded by such tactics. In Maher v. Massachusetts General Hospital Long Term Disability Plan (1st Cir., No. 10-1321, 12/7/11), the First Circuit ruled that a long-term disability benefit plan administrator gave too much weight to video surveillance of a plan participant's activities when it reviewed the participant's benefit claim, and thus the participant's claim had to be remanded to the administrator.
By way of background, Deborah Maher received long-term disability benefits through the Massachusetts General Hospital's long-term disability plan for chronic fibromyalgia. After five years, the plan's claim processor terminated Maher's benefits because surveillance videos showed Maher engaged in physical activity and playing with her son. The claim processor said that Maher was not totally disabled and could perform a sedentary nursing job. On administrative appeal, the plan administrator—Partners HealthCare System Inc.—upheld Maher's benefit termination. Maher then filed a lawsuit U.S. District Court for the District of Massachusetts. Applying a deferential standard of review, the district court upheld the plan's termination of Maher's benefits. In vacating the lower court's motion for summary judgment for the plan, the First Circuit failed to find any inconsistency between the video surveillance and the participant's claim of total disability. After working as a registered nurse, Maher subsequently appealed to the First Circuit. The appeals court was not persuaded, stating that Partners' video surveillance of Maher “confirm[ed] her lifestyle as generally housebound.” According to the court, 30 minutes of playing with her child in 90 hours of surveillance could not support the termination of Maher's benefits. The weight given to surveillance depends on both the amount and nature of the activity, the court said.
