When employees in Chicago ask a long term disability attorney about being under surveillance while receiving disability benefits, they frequently ask whether surveillance of them grocery shopping, or going to a post office would make the insurer terminate the disability benefits. I reassure people that the measuring stick for disability is the definition in the policy, usually some variation of inability due to injury or illness to perform all the material duties of the occupation full-time. The standard is not that one must be helpless to receive long term disability insurance. Individuals feel even uneasy and angry after finding out the insurer conducted surveillance. An experienced long term disability lawyer will likely tell you that surveillance—despite what a surveillance report states—is usually benign and sometimes helpful to the employee’s disability claim.
The biggest mistakes we see individuals make is panic about surveillance. Or worse, realize it is occurring and then try to “outrun” the investigator. The best course of action is to honestly tell the insurer what you can and cannot do, without exaggeration. If you do that, you cannot be caught on video engaging in activity inconsistent with your reported limitations. Nonetheless, even when people follow these guidelines when under surveillance, well-supported disability claims may still end up in litigation because the insurers often rely on the investigator’s report of the surveillance instead of the surveillance itself. A recent case provides such an example.
A former bank manager, who became disabled after hurting her back from crawling under a desk to fix a computer, learned that surveillance can be helpful. Solnin v. Sun Life & Health Ins. Co., No. 08-CV-2759 DRH AYS, 2015 U.S. Dist. LEXIS 146279 (E.D.N.Y. Oct. 28, 2015). Leading up to this lawsuit, Ms. Solnin had to fight Sun Life at every turn to obtain her long term disability benefits. She had previously filed another lawsuit under ERISA § 502(a), when Sun Life originally terminated her long term disability benefits. The court there overturned the denial and remanded the case back to Sun Life to reconsider. See Solnin v. GE Group Life Assurance Co., No. 03-CV-4857 (DRH) (ARL), 2007 U.S. Dist. LEXIS 20955, (E.D.N.Y. Mar. 23, 2007). Then Sun Life failed to render a timely decision of Ms. Solnin’s claim, so she had to sue the insurer again. Sun Life lost deferential judicial review with the court—meaning instead of the court simply reviewing Sun Life’s decision for its proper administrative process, the court instead was able to make findings of facts and determine if Ms. Solnin was disabled based on the evidence presented.
Among the medical evidence Sun Life set forth for the court to consider was 17 days of surveillance of Ms. Solnin, which Sun Life had compiled over the course of 10 years. Much of the surveillance showed Ms. Solnin doing menial chores, gardening, driving, and going to the gym. The court found that the activities depicted in the surveillance footage were consistent with Ms. Solnin’s statements of her daily activities and were not in excess of her reported abilities. Moreover, the surveillance accurately supported Ms. Solnin’s typical day (including frequently staying in her home). The court ultimately found that Ms. Solnin was disabled and entitled to benefits. Thus, despite the years of surveillance, Ms. Solnin’s surveillance actually supported her claim.
If you believe you were put under surveillance and denied your disability benefits as a result, get help from an experienced long term disability attorney today.
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