Osbun v. Auburn Foundry,
Inc., 293 F.Supp.2d 862 (N.D.Ind. 10/27/2003)(Issue: Surveillance).
The plaintiff, who suffered from multiple physical and mental impairments,
became disabled after performing more than 20 years of heavy labor when he
injured his back in 1990. After benefits were paid for several years, the
disability benefit plan had the plaintiff reexamined by a physician who found
that Osbun’s disability was continuing. However, two months later, the
examining doctor called the plan’s benefits coordinator to report she had seen
the plaintiff at a gas station and was concerned that Osbun may have
misrepresented his physical condition to her. As a result, the claimant was
placed under surveillance for two days, which showed him engaging in some
physical activities over the course of a 1.5 hour videotape. As a result,
benefits were terminated. Despite an appeal supported by medical evidence and
Osbun’s own video showing his infirmities, the plan denied his appeal, citing
surveillance as the strongest indicator of the plaintiff’s ability to work. In
court, despite the application of an arbitrary and capricious standard of
review, the court overturned the plan’s determination.
The court pointed out that all
of the medical evidence was one-sided and supported ongoing disability – Osbun
had been examined three times during the course of his claim; and all of the
examiners concurred that he remained disabled. Balanced against the medical
evidence was the video surveillance and a memo of the doctor’s telephone call
about seeing Osbun at a gas station. However, the court characterized the
plan’s evidence as “utterly insufficient to show that Osbun is capable of
maintaining employment.” *15. Further, the doctor who ran into Osbun never
retracted her earlier opinion of Osbun’s disability. Moreover, there was no
evidence as to how long the plaintiff could perform the tasks observed or
whether he could sustain a job. Nor did Auburn make any effort to determine
what jobs the plaintiff could perform, whether he had the skills and abilities
to perform any particular jobs, or to correlate the surveillance video to the
ability to perform and sustain employment.
Although the defendant
catalogued several cases in which video surveillance supported termination of
disability benefits (Patterson v. Caterpillar, Inc., 70 F.3d 503, 506
(7th Cir. 1995); see also Delta Family-Care Disability and Survivorship Plan
v. Marshall, 258 F.3d 834, 842-43 (8th Cir. 2001); Vlass v. Raytheon
Employees Disability Trust, 244 F.3d 27, 31 (1st Cir. 2001); McGarrah v.
Hartford Life Ins. Co., 234 F.3d 1026, 1032 (8th Cir. 2000); Turner v.
Delta Family-Care Disability and Survivorship Plan, 291 F.3d 1270 (11th Cir.
2002); Armstrong v. Liberty Mut. Life Assurance Co. of Boston, 273 F.
Supp.2d 395 (S.D.N.Y. 2003); Billinger v. Bell Atlantic, 240 F. Supp.2d
274 (S.D.N.Y. 2003); Bekiroglu v. Paul Revere Life Ins. Co., 223 F.
Supp.2d 361 (D. Mass. 2002); Conti v. Equitable Life Assurance Soc'y of the
United States, 227 F. Supp.2d 282 (D.N.J. 2002); Schindler v. Metro. Life
Ins. Co., 141 F. Supp. 2d 1073 (M.D. Fla. 2001); Davis v. Am. Gen. Life &
Accident Ins. Co., 906 F. Supp. 1302 (E.D. Mo. 1995)), in each of those
cases, there was additional evidence beyond the surveillance that the plaintiff
was capable of working.
Thus, the court ruled, “In
short, Auburn reached the conclusion that a mentally retarded, illiterate,
partially blind, partially deaf, arthritic man with arteriosclerotic heart
disease, thyroid insufficiency, and high blood pressure is capable of gainful
employment, simply because he performed 1.5 hours of light physical tasks over
the course of two days, and in spite of three medical reports finding total
disability. This conclusion is "downright unreasonable," Fuller, 905 F.2d
at 1058, and Auburn has offered nothing by which this Court can find otherwise.”
*20-*21.
The court also rejected
defendant’s contention that the surveillance evidence raises questions about
credibility which provides enough evidence to terminate benefits regardless of
whether Osbun is capable of employment. The court found the argument a
distortion of dictum in Hawkins v. First Union, 326 F.3d 914 (7th
Cir. 4/22/03) that was unsupported by any other ruling; and the argument was
also deemed unpersuasive: “In short, even a liar can be totally disabled.” *24.
The court accordingly ordered benefits reinstated.
Discussion: This
case is reminiscent of other cases on which we have reported: Marziale v.
Hartford, 2002 U.S.Dist.LEXIS 11321 (E.D.La. 2002)(July 2002),
which held that surveillance cannot outweigh medical opinions, and Cunningham
v. Paul Revere, 235 F. Supp. 2d 746 (W.D.Mich. 11/18/02)(December 2002),
which ruled that surveillance cannot overcome objective medical evidence.
Another useful decision, which was cited in Osbun, is Clausen v.
Standard Ins. Co., 961 F. Supp. 1446, 1457 (D. Colo. 1997), which found
surveillance that was not indicative of the ability to work on a sustained basis
could not support a benefit denial. Also see, Grosz-Salomon v. Paul Revere
Life Ins. Co., No. CV 98-7020, 1999 WL 33244979 (C.D. Cal. Feb. 4 1999)
("Relying on videotapes showing the plaintiff engaging in activities that are
significantly less taxing than working ... when all of the other objective
evidence of treating physicians and therapists confirms that the plaintiff is
totally disabled ... is an abuse of discretion." *20-*21).
