Video surveillance can be an extremely effective tool in making disability benefits determinations. Historically, courts have cautioned that the weight given to surveillance in these cases depends both on the amount and nature of the activity observed. A recent ERISA case out of the Western District of Tennessee provides insurers with guidance on the use of video surveillance in disability benefits decisions. The case is Eaton v. Reliance Standard Life Ins. Co., No. 2:16-cv-02764-TLP-cgc, 2018 U.S. Dist. LEXIS 127488, at *1 (W.D. Tenn. July 31, 2018).
Plaintiff worked as an inventory clerk at Premier Transportation since 1991. Plaintiff’s job required medium duty capacity and his duties included sitting, standing, walking, lifting heavy objects, and electronically entering work orders.
Under Premier’s Long-Term Disability Benefits Plan, plaintiff was eligible for long-term disability benefits during the first thirty-six months of the disability period if he experienced “Total Disability.” Under the Plan, an insured meets the policy’s definition of “Total Disability” if, “as a result of an [i]njury or [s]ickness . . . an insured cannot perform the material duties of his/her regular occupation.” After the first thirty-six months, to remain eligible for ongoing benefits, the insured must satisfy a stricter definition. To have a “Total Disability” after thirty-six months, the employee must be capable of only performing the material duties of any occupation on a part-time basis or part of the material duties on a Full-time basis.
Plaintiff filed his initial claim for LTD benefits based on symptoms related to post-discectomy back pain and bilateral carpal tunnel syndrome. Reliance Standard approved Eaton’s claim for LTD benefits and paid benefits until 2015.
On July 31, 2015, Defendant asked Plaintiff to complete an Activities of Daily Living questionnaire. On the questionnaire Eaton explained that his back pain was still persistent and was interfering with his sleep. He also explained that “he cannot walk any” because of his limping and that his “left side [is] progressively getting worse.” Eaton, on another section of the form, stated again that he was “[b]arely able to walk” and that his “left leg drags.” He reported having to “sit for long periods of time” and that his “tail bone/nerve goes dead.” He claimed that he was able to drive a couple times a week, but no more than 40 to 50 miles. Eaton noted that he attended occasional Jeep Club meetings as a guest of a friend. He also claimed to be unable to hunt or fish because of his pain.
During March and April 2016 Reliance Standard hired an investigator to conduct surveillance on Eaton. On one of those days, the investigator observed Eaton driving to a Jeep Club meeting and then driving to a restaurant with the group. Eaton “displayed the ability to use both arms as he carried items and took pictures with his phone above his head.” Several days later, the investigator observed Eaton “loading drinks, pillows, blankets, and other camping items into the Jeep and then strapping down the loose items in the trailer.” He “displayed the ability to use both arms, bend at his waist and raise his legs to hip height as he had to step over the trailer hitch multiple times.” Eaton was apparently preparing for a camping trip at an off-road park in Alabama.
On May 24, 2016, Reliance Standard terminated Eaton’s LTD benefits based on a culmination of information. The letter noted:
“On the [Activities of Daily Living] Form completed by you on 8/18/15, you reported that you were barely able to walk, a drag of the left leg, and that it is hard to sit for long periods of time due to the tail bone nerve going dead. In addition, you noted difficulties driving and sitting as a passenger. You indicated you can only drive 40-50 miles; as a passenger, you could potentially travel longer (70-100 miles) so long as there is space to lie. Additionally, on the same ADL Form mentioned above, you stated that you sometimes attend a Jeep Club every few months as a friend’s guest to talk about Jeeps. Surveillance was conducted over the course of several days, where it was found that you are the Secretary of the Mid-South Jeep Club. You were observed to be driving your vehicle on the off-road trials … [S]everal YouTube videos you have posted show your ability to drive among the conditions of off-roading trials. Surveillance also showed your ability to ambulate without a foot drag, stand for periods of time, and bend at the waist. Medical Records from Dr. Webb note that pain is consistent, but is dulled by medications.”
After upholding its decision on appeal, Eaton sued, arguing that Reliance Standard’s denial of his LTD benefits was not the product of a principled and deliberate reasoning process because Reliance Standard relied on “a series of videotapes taken by a private investigator who was employed by [Reliance Standard] to do unauthorized surveillance of [Eaton].”
The district court noted that there is no case law that prohibits a plan administrator from conducting surveillance of a claimant, nor was there any language in the policy that prohibited Reliance Standard from gathering surveillance videos. In fact, case law suggests that surveillance by plan administrators is routine, and courts have approved the use of surveillance footage in determining whether a claimant is disabled.
The court found that Reliance Standard utilized the surveillance footage properly. A plan administrator was not required to ignore the inconsistencies between Eaton’s assessment of his level of activity and the videotape of those activities. That being said, the inconsistencies still had to be more than minor and in this case, the court found that they were.
The court found that Reliance Standard did not base its decision to terminate Eaton’s LTD benefits solely on the surveillance footage. While it was undeniable that the video footage played a role—and perhaps even a significant role—in Reliance Standard’s decision, it was not improper.
The March and April 2016 videos showed Eaton easily moving about with no physical indications of pain. There was no footage of Eaton limping or barely being able to walk. In the court’s view, it stood to reason that, if Eaton were, in fact, totally disabled, a surveillance video taken over a long span of time would show Eaton in the constant and debilitating pain that he reported. But it did not. As a result, the court found that Reliance Standard’s reliance on such overwhelming contradictory surveillance footage was not arbitrary and capricious.
In a Nutshell
The court’s holding in Eaton provides insurers with the following guidance on the proper use of video surveillance in disability benefits decisions:
- A plan administrator is not required to ignore inconsistencies between a plaintiff’s assessment of his or her level of activity and footage of the plaintiff participating in those activities.
- For video surveillance to be meaningful, inconsistencies between the plaintiff’s assessment and the actual level of activity must be more than minor.
- Surveillance video lasting only twenty minutes, with the plaintiff’s activity recorded only a few minutes at a time over a period of two hours, may not be given much, if any, weight.
- The video in this case was helpful because it showed Plaintiff partaking in activities for hours at a time.
- The Sixth Circuit requires that the plan administrator not base its decision to terminate benefits solely on surveillance footage.
- An independent reviewing physician’s opinion may be given greater weight when relying on a medical record review and video surveillance.