Video Surveillance Footage vs. Video Surveillance Summary Report
Court Questions if Insurer Actually Watched Video Surveillance Used to Deny LTD Claim, or Just Read the Report
By: Andrew B. Bryant
In our September 2, 2018 blog article on the use of video surveillance in an insurer’s investigation of a disability claim, we saw how video surveillance of a long-term disability (LTD) recipient’s daily activities significantly contradicted statements made by that benefit recipient, and ultimately discredited the claim for LTD benefits. A recent District Court decision out of the Central District of California shows the flip-side – how an insurer’s reliance on video surveillance (or in this case the related summary report of that video surveillance) to deny a disability claim can be viewed by a Court as an insufficient basis to support that denial of benefits.
The video surveillance at issue came to light during the bench trial of the case of Pamela Fleming v. Unum Life Insurance Company of America. Plaintiff Fleming was an attorney who suffered significant back injuries in a car crash in 1998. After the car accident, Fleming continued working, with reduced hours at times, and eventually underwent C5-C6 spinal fusion surgery in 2003. As of 2005 she could no longer work due to increased severity in her back pain.
Fleming applied for disability benefits under her LTD policy with Unum, and Unum began paying these benefits in December 2005. Fleming later underwent a second back surgery in 2007 to alleviate her ongoing symptoms, but her pain only escalated causing her to be “mostly bedridden” with severe pain in her neck, shoulders, and upper arms. Both Fleming’s treating physicians and Unum’s reviewing medical professionals noted that Fleming appeared to be totally and/or permanently disabled. (The Court’ s opinion details at length Fleming’s ten years of continuing medical treatments related to her post-accident back problems.)
In 2016, Unum initiated a desk reassignment of Fleming’s claim, resulting a review of Fleming’s medical records and covert video surveillance of Fleming. Three doctors retained by Unum conducted desk reviews of the claim, and found that Fleming’s complaints of pain were not supported by her medical history or the video surveillance. In September 2016, Unum terminated benefits concluding that Fleming was “no longer precluded from performing the duties of [her] usual occupation.”
The Video Surveillance
Unum’s third-party special investigations vendor conducted video surveillance of Fleming over two days in July, 2016. The investigator gathered approximately 15 minutes of footage showing Fleming descending a flight of stairs, taking a garbage bag to a dumpster, and carrying a small cooler in one hand. Fleming also drove for a few hours to a doctor appointment in Los Angeles.
Upon watching the video surveillance, the Court assigned little to no weight to the video footage. Significantly, the Court specifically questioned whether Unum’s claim reviewers actually watched the surveillance video footage or only read the accompanying summary report issued by the surveillance company. The Court discussed the video footage in detail, and how the summary report of surveillance was contradicted by the actual video footage, finding that the video surveillance in many respects confirmed Fleming’s claimed medical conditions. Ultimately, the Court found that the video surveillance summary report “selectively describes Fleming’s actions,” and “fails to paint a complete picture.” In reinstating benefits, the Court held that “[O]ne day of surveillance footage and Unum’s paper-only review of Fleming’s claim do not overcome the overwhelming evidence that Fleming was limited from performing ‘the material and substantial duties of [her] regular occupation.”
The Court entered judgment for Fleming, awarding reinstatement of benefits, back benefits with interest, costs, and attorney’s fees.
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