Posted On: February 6, 2012 by Serafini, Michalowski, Derkacz

SURVEILLANCE AND THE LTD INSURER

Long Term Disability Insurers love to use surveillance to find a way to terminate benefits. Think about it it from a business perspective. They can hire a private investigator and pay them $500 or a $1000 dollars to follow a claimant around for a few days and maybe save tens or hundreds of thousands of dollars if they can just get something on tape that they can use to terminate the claim. This is the story of one such claim.

SMDA was hired by Mr. S who last worked as a senior programmer for EDS when his significant and progressive back problems stopped him from working. He had been diagnosed with lumbar post laminectomy syndrome with lumbar radiculopathy, lumbar spondylosis with low back pain and lower extremity pain. As a result, he had severe low back pain with aching, shooting, sharp, and throbbing pain with numbness, tingling, burning and stiffness on a daily basis. Objective testing including multiple MRI’s and EMGs have confirmed his significant deficits. The LTD Insurer originally approved his claim and paid his LTD benefits for years.

Despite the overwhelming medical evidence demonstrating his progressive disability, the LTD Insurer hired a private investigator to follow Mr. S around. During the first several days the private investigator saw nothing but the outside of the client's house. The last day, Ms. S left the house and went to Walmart. The videotape shows Mr. S slowly getting out of his car and walking into the store leaning heavily on both his cane and then the grocery cart. The private investigator followed him into Walmart and up and down several aisles as he surreptitiously videotaped Mr. S. The video shows Mr. S picking up and looking at several items each of which weigh less than 2 pounds, leaning on his shopping cart and going through the check-out.

The Insurer thereafter terminated all of Mr. S's LTD benefits claiming that the videotape proved he could work in some other occupation. The LTD Insurer never bothered to even have the videotape reviewed by any nurse or doctor prior to cutting of the benefits. SMDA filed an administrative appeal of this decision providing the client's ongoing medical records and test results as well as statements from the attending physicians disputing the insurer's characterization of the video as well as Mr. S restrictions and limitations.

Upon consideration of the appeal, the Insurer reversed its decision to terminate Mr. S LTD benefits. This is just one example of many cases SMDA has seen where the insurer hires a private investigator in the hope that it can catch a claimant doing anything that it can use to terminate benefits. A real problem with this tactic is that Mr. S had no income for months after the insurer denied the claim while the appeal was being prepared and filed. While Mr. S had no income, his mortgage company and other creditors still expected to get paid. This caused tremendous emotional distress as the bill collectors hounded Mr. S. Unfortunately, ERISA provides Mr. S with no remedy for these problems.