Super Lawyers
Consumer Attorneys California
AV Preeminent
State Bar of California
American Association for Justice

Court Says LTD Insurer Reliance on Surveillance Video Reasonable

At our law firm, we help people in their claims for short- and long-term disability insurance benefits based on a variety of impairments. As we have written about in this space, disability insurance companies now regularly use video, physical and Internet surveillance of claimants to gather evidence that might undercut their claims.

Surveillance methods that insurers use include:

  • Social-media monitoring and other Internet investigative techniques
  • Traditional investigation, which could involve photographing and filming claimants in their daily lives
  • Drone surveillance

There are companies specializing in this kind of surveillance that contract with disability insurers for online or physical surveillance services.

Surveillance of Claimant Activity

Insurers might use surveillance evidence not only to counter medical and vocational evidence in initial disability-insurance claims, but also to justify terminating benefits, especially in long-term claims. Courts across the country routinely analyze whether insurer use of surveillance evidence is reasonable in a variety of claims.

Court Discredits Surveillance Evidence

In a previous post, we described the case of Richard Wagner, an LTD claimant whose benefits, which were based on a leg injury to a man who already had paraplegia, were terminated after almost three years of payments. The U.S. Court of Appeals for the Sixth Circuit found that the termination of benefits based on a doctor’s review of surveillance video of Wagner’s activities was wrongful and ordered his benefits reinstated.

The court said that the brief surveillance clips were “weak evidence of anything beyond those minutes,” considering that the claimant experienced severe pain on an intermittent basis. In addition, the reviewing doctor did not physically examine Wagner and all professionals who did so felt he could not work.

The court also expressed displeasure with the reviewing doctor concluding that Wagner was lying based on reviewing the surveillance and other records.

Court Credits Video Evidence

Going the other way, the Eleventh Circuit in a recent decision credited video surveillance evidence in the LTD termination case of O’Leary v. Aetna Life Insurance Company. Claimant Timothy O’Leary had received LTD benefits after a motorcycle accident for nine years at which time Aetna stopped paying based in part on surveillance showing him driving, “tot[ing] a garbage can to his garage” and dancing while out to a nightclub.

The court found that Aetna’s termination was reasonable and not arbitrary and capricious in part because of video-surveillance evidence, which it was “entitled to rely on.”

Because surveillance evidence can be so important, any claimant who suspects his or her insurer has engaged in such tactics should consult with an experienced attorney as soon as possible.

Client Reviews
Just when I thought there was no hope to recover my LTD benefits, I found attorney Constantin Roboostoff. With his expertise, I was able to recover all of my back long term disability benefits. Other attorneys wouldn’t take my case because it wasn’t cut and dry. Mr. Roboostoff took the challenge and did an incredible job. Not only did he get my current disability benefits going, he also recovered all my back benefits. He was a true blessing and I would recommend him whole heartedly. CW
It was my pleasure to make contact with Scott Kalkin three years ago after other lawyers had turned me away and told me I would not succeed in my lawsuit. Thanks to Scott's thoroughness, dedication, and diligence, my lawsuit WAS successful and he saw me through to the end, which included putting legal pressure on the insurance company which had invested so much time, personnel, and money, in not paying me what was due. RB
As soon as I met with Scott, I could tell he was knowledgeable, resourceful, experienced, highly professional, and would be dedicated to getting me fair treatment. Scott has handled all interactions with my insurance company ever since. Being able to rely on him to represent me has been a huge relief for a chronically ill person. SO