Unum Surveillance Not Persuasive In Court

Surveillance1Unum’s attempts to discredit and deny claims based on surveillance are finally seen as not credible evidence for terminating claims. A good case in point is Fleming vs. Unum Life Insurance Company, SACV 17-01576-CJC, November 20, 2018.

In this case, an attorney by the name of Fleming was involved in a serious car accident and very badly injured. Following the accident, she was forced to scale down her hours, and ultimately became unable to work in 2005 when she applied for and was granted LTD benefits. Unum paid her benefits for 11 years before terminating her coverage in 2016 on the basis on “inconsistency of report” for 15 minutes of video surveillance.

From the opinion:

“Despite Fleming’s voluminous file of medical records cataloguing her chronic pain and physical restrictions, Unum and its reviewing physicians chose to assign immense weight to 15 minutes of surveillance footage. Although Fleming can be seen for only brief periods from a distance, each of the individuals Unum designated to review both Fleming’s claim and her appeal characterize this footage as clear proof of the “inconsistencies” between Fleming’s actual functional capacity and her treating physicians’ reports.

The Court assigns little to no weight to this surveillance footage. First, it is unclear from the record whether Unum’s reviewers actually watched the surveillance footage or only read the accompanying report issued by the surveillance company. That report, which selectively describes Fleming’s actions, fails to paint a complete picture. For instance, the report notes that Fleming lifted a trash bag “upwards over her shoulders” and “bent at the waist” twice. (AR 1984.) Indeed, Fleming can be seen throwing a trash bag away and bending near her vehicle to place a cooler in the backseat. But these actions, even in light of Fleming’s medical conditions, are unremarkable. As Fleming informed Unum during her appeal and as can be seen on the footage, the bag of trash contains empty plastic bottles. Lifting the bag over her head was no feat of strength or indication of recovery.

Further, bending at the waist and leaning into a car do not relate to Fleming’s restrictions and limitations. Fleming suffers from degenerative disc disease of her cervical spine—i.e., her neck. Although she was diagnosed in recent years with adult onset scoliosis, her neck pain is her primary disabling condition. 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. See Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) (“This court has repeatedly asserted that the mere fact that a plaintiff has carried on certain daily activities . . . does not in any way detract from her credibility as to her overall disability. One does not need to be ‘utterly incapacitated’ in order to be disabled.” (citation omitted)). That footage shows Fleming leaving her apartment once—for a doctor’s appointment—over the course of two days. Both coming and going from her apartment, Fleming walked gingerly down and up a flight of stairs, one step at a time, while holding onto the handrail for support. If anything, the surveillance footage confirms that Fleming spent the majority of her time at home and had to utilize extreme care when leaving her apartment.”

“Even if the surveillance footage was somehow inconsistent with Fleming’s medical records and self-reported pain, the Ninth Circuit is understandably skeptical of insurers’ reliance on brief surveillance footage as proof of a claimant’s capacity to work full-time. See Grosz Salomon v. Paul Revere Life Ins. Co., 237 F.3d 1154, 1162 n.36 (9th Cir. 2001) (affirming district court’s rejection of video surveillance as proof of work capacity and noting that it “did not shed much light on whether she could function full-time as a trial attorney”); see also Wagner v. Am. United Life Ins. Co., 731 Fed. App’x 495, 497– 98 (6th

Cir. 2018) (“[T]he surveillance video captured [plaintiff] for 20 minutes over a two-hour period, and only for a few minutes at a time. It is weak evidence of anything beyond those minutes, given that (according to [plaintiff] and his doctors) his pain would come and go. And [plaintiff’s] ability to live alone and to engage in sporadic activities says little about his ability to go to work.”). The Court sees no reason to credit Unum’s 15 minutes of surveillance footage from one day here, especially when it is contradicted by over ten years of medical records.

Without the surveillance footage, Unum’s determination that Fleming no longer qualified as disabled rested entirely on cherry-picked statements from Fleming’s physicians and a paper-only review of Fleming’s claim. First, Unum asserts that according to a person in Dr. Kerr’s office, Dr. Kerr was “not advising” as to any work capacity restrictions or

limitations. (Dkt. 31 at 11.) However, as noted above, the notes that were actually written by Dr. Kerr consistently confirmed Fleming’s inability to lift more than 10 pounds, her tenderness and decreased range of motion, and chronic pain. Next, Unum argues that Dr. Kohli, Plaintiff’s endocrinologist, was not issuing any restrictions and limitations. (Id. at 25.) But Plaintiff visited Dr. Kohli to determine the cause of her weight gain—not for any conditions related to her disability. (AR 2057.) Finally, Unum emphasizes that in 2016, Dr. Carden would no longer complete Fleming’s disability forms. (Dkt. 31 at 25.) Dr. Carden was not completing her forms because she stopped seeing him. Accordingly, Dr. Granlund, Fleming’s new treating physician, began completing her forms. (AR 1615–17.) As noted above, Dr. Granlund, like Dr. Kerr, confirmed Fleming’s symptoms after comprehensive in-person visits, a review of her medications, and lab testing.”

The court found in favor of the plaintiff.