Labor & Employment Law I AUGUST 14, 2018

Video Surveillance Trips up LTD Applicant

Gregory Eaton worked as an inventory clerk at Premier Transportation. His job duties included sitting, standing, walking, lifting heavy objects, and electronically entering work orders.

Eaton filed a claim for LTD benefits with Reliance Standard Life Insurance Company because of an injury occurring on July 20, 2007.

Reliance Standard initially approved Eaton’s claim for LTD benefits early the next year. Near the end of thirty-six months, Reliance Standard informed Eaton that it needed more information to ensure that Eaton remained “Totally Disabled” after March 18, 2010. But Eaton never responded.

Reliance Standard ultimately terminated Eaton’s LTD benefits for his failure to submit satisfactory proof of Total Disability. Eaton timely submitted a written request for review.

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 had to “sit for long periods of time” and his “tail bone/nerve goes dead,” He claimed the ability to drive a couple times a week, but no more than 40 to 50 miles. Eaton wrote 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. The investigator observed Eaton on March 19, 2016, 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.” On April 1, 2016, 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 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.

Eaton argued 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 federal district court observed 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. They were.

Here, 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-- perhaps a significant role-- in Reliance Standard’s decision, it was not improper. Reliance Standard noticed a discrepancy between Eaton’s 2015 Activities of Daily Living Form and Dr. Rizk’s Independent Medical Evaluation, which prompted Reliance Standard to request surveillance.

One surveillance video showed Eaton attending a MidSouth Jeep Club meeting, a club for which he was actually the Secretary. He drove himself and his wife to the meeting. After the meeting, he and his wife arrived at a restaurant and remained there for around two hours. While at the restaurant, the video showed Eaton standing for extended periods of time, walking, raising his arms to take photos of the group, and smoking a cigarette.

The April 2016 surveillance footage also revealed more than minor inconsistencies. On one day, the surveillance footage showed Eaton leaning down to load drinks into a cooler in his trailer. Eaton continued to walk to and from his house to his Jeep to load pillows, blankets, and other objects. This footage showed Eaton repeatedly bending over. Eaton drove himself and his wife for about four hours until they reached their destination in Alabama. Although the investigator did not follow Eaton into the woods, the footage showed Eaton, along with the rest of the group, driving to the off-road trails.

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 alleged. Here, it did not. Reliance Standard’s reliance on such overwhelming contradictory surveillance footage was not arbitrary and capricious.

The court found that Reliance Standard did not act arbitrarily and capriciously in denying Eaton disability benefits.

The case is Gregory Eaton v. Reliance Standard Life Insurance Company, 2018 WL 3639837 (W.D. Tenn., July 31, 2018).