Barrett v Sedgwick

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Barrett v. Sedgwick CMS Long-Term Disability Plan, 2011 U.S.Dist.LEXIS 116067 (D.Minn. October 7, 2011)(Issues: Pain; Surveillance).

The plaintiff, Stephen Barrett, was himself a claim adjuster in the field of short-term and long-term disability benefits. In 1996, while working as an adjuster for Fortis Benefits, Barrett injured his back playing basketball and was limited to working part-time for periods of time thereafter. In 1999, Barrett began working for Sedgwick Claims Management Systems as a long-term disability benefits coordinator. Shortly after he began working for Sedgwick, though, Barrett's condition worsened and he underwent a spinal fusion in October 1999. In January 2000, Barrett's recovery was impeded when he was involved in a car accident and he was never able to return to work. His claim was administered by Aetna Life Insurance Company. Under the Sedgwick disability benefit plan, he was entitled to 30 months of own-occupation disability coverage; thereafter, he had to prove his inability to engage in "any substantial gainful employment." In 2002, Aetna approved his claim under the more rigorous standard, and Barrett provided regular ongoing proof of his continuing disability, which included reports that he had undergone two surgeries in 2005 and 2006 - one to remove hardware from the initial fusion and another to replace an implanted pain medication pump that had malfunctioned. However, Aetna arranged surveillance and obtained video of him coaching his 9 year-old daughter's soccer practice. During an interview with an investigator conducted at the same time, though, Barrett told the investigator that he could not perform any volunteer work or engage in sports activity on account of his pain. Aetna relied on the purported inconsistency to deny benefits shortly thereafter. All pre-suit appeals failed; and Barrett then brought suit.

Applying the de novo standard of review, the court reviewed the evidence which included numerous treating doctor reports, a social security finding of ongoing disability, and radiology findings that showed a new condition - avascular necrosis of the femoral heads in his hips as well as damage to the cervical spine. The records showed numerous pain medications as well, including large doses of Oxycontin, Percocet, and Ambien. The court also discussed the surveillance video that showed the plaintiff as appearing to wear a back brace and exhibiting stiff and awkward movements. Although Barrett engaged in a number of physical activities during the soccer practice, the court noted that he frequently stretched his back and that his movements were limited. In addition, the tape skipped - the court pointed out a nearly 15 minute gap and remarked there is no way to know what he was doing during that time. However, when Aetna sent the recording to one of Barrett's physicians, he responded by indicating surprise at the video and by expressing discomfort at certifying total disability upon seeing the video, although the doctor also remarked he was not an expert in disability certification. Aetna also had four doctors review the file. One of the doctors purportedly spoke with another treating physician who provided pain management and he allegedly told the reviewing doctor that Barrett could perform sedentary work. Another treating doctor also supposedly told the reviewing doctor that there were no limitations that precluded sedentary to light work. Although one reviewing doctor suggested that an FCE be performed none was obtained except for one that Barrett obtained at his own expense, which Aetna rejected because it lacked validity data. Barrett also obtained reports from his doctors who complained their opinions had been mischaracterized by the Aetna reviewing doctors and that they had maintained that Barrett's pain level precluded work.

In weighing the evidence, the court pointed out that Barrett never maintained that he was totally helpless; he claimed that he was limited in performing physical activities for extended periods of time. Moreover, the court pointed to a "plethora of evidence in the record that Barrett suffers from severe pain in his back." Both objective and subjective evidence supported the pain allegations and the prescriptions for pain relief medications itself provides "evidence that his physicians believe that he is in considerable pain."

The court was also unconvinced that the surveillance offered Aetna support for its decision:

The video shows him attempting to coach soccer for two hours on one day. See, e.g., Cross v. Metro. Life Ins. Co., 292 F. App'x 888, 892 (11th Cir. 2008) (surveillance video provided a "mere snapshot" of the claimant's daily activities). It does not show him performing normally day in and day out, nor does it show him doing anything more than he admitted he could do. More importantly, the video shows that Barrett is not comfortable even with the limited movement in which he engages during the practice. It does not establish that Barrett is able to work.

Therefore, the court fond in Barrett's favor and reversed Aetna's decision. The court also invited a fee petition.