Insurer’s bid to use videotape to halt disability benefits finds no takers

This article was initially published in the Chicago Daily Law Bulletin on January 9, 2019.

By Mark D. DeBofsky

Mark D. DeBofsky is a name partner of DeBofsky Sherman Casciari Reynolds P.C. He handles civil and appellate litigation involving employee benefits, disability insurance and other insurance claims and coverage, and Social Security law. He can be reached at [email protected].

Surveillance may sometimes be a useful tool in detecting potential insurance fraud. In a recent California case, however, video surveillance obtained by a disability insurer was insufficient to convince a judge that it correctly decided to terminate an insured's benefit payments.

The case of Fleming v. Unum Life Insurance Company of America, 2018 WL 6133859 (C.D. Calif., Nov. 20, 2017), was brought by Pamela Fleming, a former litigator who suffered severe spinal injuries in a 1998 car accident that left her unable to practice law. Fleming was found qualified to receive disability benefits, but after more than a decade of payments, Unum abruptly closed Fleming's claim.

The court ruling recounted Fleming's extensive surgery and ongoing pain. Indeed, one of Unum's in-house physicians acknowledged during the early stages of the claim that her "complaints of continued severe pain [that] preclude [Fleming] from just sitting at [a] desk is warranted and unlikely to change."

A subsequent clinical review concluded, "it seems reasonable to anticipate that she will be permanently disabled." During the course of the claim, Fleming also qualified to receive Social Security disability benefits and, following that award, Unum offered Fleming a lump-sum settlement equal to 65 percent of her future benefits, which she declined.

After years of payments, in early 2016, following a reassignment of Fleming's claim to a new representative, Unum questioned the treating doctor's certification of disability and conducted two days of covert surveillance.

On one day, Fleming was videotaped descending a flight of stairs with a trash bag in one hand, a cooler in the other and a purse over her right shoulder.

Fleming lifted the garbage bag to deposit it into a trash receptacle and then she got into a car and drove in traffic with her mother for several hours. After reviewing the video, Unum asserted it was "unclear" whether Fleming could work as an attorney based on claimed "inconsistences" between her reported symptoms and the surveillance. Unum then had three in-house physicians review Fleming's records and based on their findings, benefits were terminated.

The court utilized the de novo standard of review and concluded the plaintiff met her burden of proof in establishing her entitlement to ongoing benefits. The court was impressed by consistent, ongoing documentation in Fleming's records of intractable pain and decreased mobility.

The court also found Fleming's symptom complaints were corroborated by prescriptions for several potent opioid pain medications and noted that one of the treating doctors had documented "cognitive side effects" were caused by Fleming's medications, including difficulty with memory and concentration.

Although Unum placed "immense weight" on 15 minutes of compiled surveillance video, the court disagreed and assigned "little to no weight" to the surveillance.

The court questioned whether Unum's doctors reviewed the video and suggested they likely only read the accompanying report since the video's depiction of Fleming lifting a bag containing empty plastic bottles "was no feat of strength or indication of recovery."

Moreover, the court observed: "The fact that Fleming took out the trash or bent down to place a one-pound cooler in her car does not render her capable of full-time employment as a litigation attorney."

The court characterized the rest of Unum's argument as being built on "cherry-picked statements from Fleming's physicians and a paper-only review of Fleming's claim"

The court also questioned the reviewing doctors' credentials to opine on Fleming's condition. The court cited 29 C.F.R. Section 2560.503-1(h)(3)(iii) for the requirement that Unum was obligated to solicit opinions from specialist physicians and pointed to the lack of a showing that the physicians it relied on had "training and experience" in the relevant fields of medicine.

The court also expressed skepticism about Unum's reliance on file reviews when there was so much extensive evidence from doctors who had examined Fleming and noted that even Unum's own field examiner witnessed Fleming's pain behavior. Accordingly, judgment was entered in the plaintiff's favor.

In addition to the cases the court cited, in a recent ruling that also involved an attorney, the court addressed a disability insurer's surveillance finding as follows:

"As the [7th U.S. Circuit Court of Appeals] observed in a similar case about a psychological impairment, 'That [Denise Druhot] can clean her home and care for her pets ... does not support a conclusion that she is capable of employment unless the [p]lan believes she is qualified to care for animals as a living.' Tate v. Long Term Disability Plan for Salaried Employees of Champion International, 545 F.3d 555, 561 (7th Cir. 2008), abrogated on other grounds by Hardt v. Reliance Standard Life Insurance Co., 560 U.S. 242 (2010).

"At the risk of belaboring the point, nowhere on the list of job tasks which Reliance Standard prefers (AR 216) does dog walking appear. So lawyers, at least for plan purposes, are not dog walkers, and analyses of Druhot's conditions' effect on her ability to walk a dog and get the mail miss the mark. Druhot has never denied that she could not walk short distances, and that is not the basis of her disability claim." Druhot v. Reliance Standard Life Insurance Co., No. 16-CV-2053, 2017 WL 4310653, at *9 (N.D. Ill., Sept. 28, 2017).

Another useful observation was made by the 7th Circuit in a case involving chronic pain:

"What is significant is the improbability that [the claimant] would have undergone the pain-treatment procedures that she did, which included not only heavy doses of strong drugs such as Vicodin, Toradol, Demerol and even morphine, but also the surgical implantation in her spine of a catheter and a spinal-cord stimulator, merely in order to strengthen the credibility of her complaints of pain and so increase her chances of obtaining disability benefits.... " Diaz v. Prudential Insurance Company of America, 499 F.3d 640, 646 (7th Cir. 2007) (citing Carradine v. Barnhart, 360 F.3d 751, 755 (7th Cir. 2004).

The court concluded there, as the court found here as well, that a consistent record of pain treatment is corroborative of pain complaints and supports a disability claim.

It was also significant here that Unum had repeatedly documented the permanence of Fleming's impairments prior to doing an inexplicable about-face. Unum was unable to present any findings showing that Fleming's condition had somehow miraculously improved, which left the court with an easy decision to make.

— I represented the plaintiffs in the Druhot, Tate and Diaz cases cited above.

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