Companion Life wrongfully relies on 22 minutes of video surveillance to deny disability insurance benefits

This long term disability insurance case against Companion Life is another classic example of a disability insurance company’s wrongful use of video surveillance to deny disability insurance benefits. This claimant won her court battle with Companion Life, but she was forced to survive for more than 4 years without receiving any long term disability benefits. Let’s take a closer look at the case of Gail Lewandowski.

Ms. Lewandowski is a 61 year-old woman who was employed at a mental health facility from 1986 through 2000. Her job duties included overseeing the safety, supervision, and training of developmentally disabled individuals as well as attending to clinical and administrative matters. Suffering from osteoarthritis, Lewandowski was unable to work and submitted a claim for long term disability benefits in 2001 and was subsequently approved.

At the time of approval, Companion Life advised Lewandowski that periodically she would be required to provide information to the company proving that her disability was ongoing as her long term disability policy stated that Companion life has “discretionary authority to determine your eligibility for benefits and to construe the terms of the policy and to make a benefits determination.”

In March 2004, Companion Life sent a letter to Lewandowski advising her that she had to prove that she was “unable to perform with reasonably continuity all of the material and substantial duties of her own or any occupation for which she is or becomes reasonably fitted by training, education experience, age and physical and mental capacity.” Lewandowski submitted a claimant questionnaire shortly thereafter where she indicated that she suffered from Osteoarthritis, Scoliosis, Carpal Tunnel Syndrome, degeneration of her joints, and trigger finger in her right thumb and ring finger, and as a result of these afflictions, she experienced constant pain. Lewandowski asserted that she was unable to stand for more than a few minutes; that her ability to walk depended on her “flare-ups”, and some days she could barely walk across a room while other days she could take walks outdoors; and that sitting caused severe pain in her back and, as a result, she was required to sit in a reclined position with pillows supporting her. She claimed that she always brought pillows with her when she went out. Further, she stated that she was restricted from lifting more than ten pounds, and that gripping items caused pain. Finally, she stated that her thoracic spine was worsening, and that she often had to lie down throughout the day to relieve pressure in her back.

Lewandowski’s physician, rheumatologist Dr. Thomas Bryan, submitted a physical capacities evaluation in November 2004 where he indicated that Lewandowski could lift and carry a maximum of eight pounds, push/pull a maximum of 20 pounds, and sit, stand, walk, climb stairs, or reach below waist-level occasionally but limited each activity to a maximum of 2.5 hours. Dr. Bryan also indicated that she could not stoop, kneel, crouch, or crawl.

As a result of this information, Companion Life approved continuation of Lewandowski’s long-term disability benefits. Companion Life, however, initiated an investigation of Lewandowski. In 2005, Companion hired a private investigator to follow and videotape Ms. Lewandowski for several days.Over several days, the investigator obtained a total of 22 minutes of actual video footage.On the first day, the video surveillance showed Lewandowski away from her home for over 3 hours. During that time, she went to Dr. Bryan’s office, brushed snow/ice off of her car, entered into her vehicle by stepping onto the side rail, and had lunch at a restaurant where she did not take pillows with her to use while sitting. The following day, Lewandowski went to a Heart Center and then to a shopping mall. While shopping, she was recorded holding on to her purse and shopping bag (at one point she held the shopping bag over her shoulder for less than one minute), and is seen retrieving an item from a lower shelf.

After obtaining the video surveillance, Companion sent a different investigator to interview Ms. Lewandowski at her home. During the interview, Lewandowski made statements consistent with previous statements regarding her disability. The interviewer then confronted Lewandowski with the video surveillance, where Lewandowski stated that the activity observed on the video was “consistent with my normal level of functionality on occasion an average decent day.”

Companion Life attempted to contact Dr. Byran, but after Dr. Bryan failed to respond to their request for a review of the video and interview, Companion Life hired a Board Certified Rheumatologist, Dr. Brian Peck to review the medical records, the video surveillance, and the insurance company interview. Dr. Peck noted that the medical records contained procedure notes, imaging studies, and descriptions of symptoms, but did not provide details of physical examinations, restrictions or limitations. The records did, however, indicate Dr. Bryan’s assertion that Lewandowski is disabled. Dr. Peck observed that the video surveillance and noted that it showed Lewandowski scraping windows “vigorously”, handling her purse without difficulty, getting into a car and walking across the snow “with ease”, flipping through racks of clothes, bending over easily, walking considerable distance through the shopping mall, and holding a shopping bag over her shoulder. Based on these observations, Dr. Peck felt that Lewandowski could do light sedentary work for eight full hours a day.

Companion Life sent Dr. Peck’s report to their internal vocational consultant to determine if there were any jobs available that would accommodate the restrictions and limitations of Ms. Lewandowski. An Employability Analysis Report was conductedbased on Lewandowski’s functional capabilities,, education, training, and working history. The report found that Lewandowski could perform up to 52 different occupations.

Companion Life informed Lewandowski that she was no longer eligible to receive long-term disability benefits, and her subsequent appeal was denied. The lawsuit then followed.

The Michigan District Court’s Analysis:

The United States District Court for the Eastern District of Michigan found that the termination of Lewandowski’s benefits was wrong and that disability benefits should be reinstated. The Court reached this conclusion for numerous reasons. The Court was troubled that Companion Life terminated the benefits without obtaining or relying upon any objective medical evaluation, and focusing only on their hired doctor’s analysis of the video surveillance.. The Court noted that although Ms. Lewandowski’s treating physician was unable to be contacted, his examination and report was unrebutted by any objective medical opinion and there was no evidence that any doctor had ever examined Lewandowski and found that she is able to work. Further, the Court stated that to terminate benefits, a defendant “must be provided with some new information to which it was not previously privy that establishes a Plaintiff’s ability to work,” Hanusik v. Hartford Life Insurance Co. The Court determined that Companion Life had failed to rely on any new information in this case as the video did not contradict Lewandowski’s self-reported abilities and her physician’s analysis.

Michigan Court Analyses Several Cases In Which Disability Insurance Companies Relied On Video Surveillance to Deny Disability Benefits

Companion Life attempted to argue that the prior decision of Briggs v. Marriott Int’l, Inc. allows a review of video evidence to be sufficient evidence to base a denial of disability benefits. However, the Court points out that in that case the insurer relied upon that video evidence along with over 500 pages of medical records, questionnaires, and an independent medical evaluation.

Additionally, Companion Life pointed to the following cases in which courts have found that an insurer’s decision to terminate benefits based on video surveillance evidence was not arbitrary and capricious:

• Rose v. Hartford Financial Services Group, where a claimant asserted she was unable to stand for more than thirty minutes, needed help shopping and was unable to lift more than four pounds, but was videotaped over two days lifting a 37.5 pound bag of dog food and observed shopping at numerous places.
• Tsoulas v. Liberty Life Assurance Co. of Boston, where a claimant who reported that she needed to sleep 14 to 18 hours per day, was unable to walk without assistance and incapable of climbing stairs was filmed walking up stairs, at numerous places including a night club and shopping, all without assistance.
• Moore v. Metropolitan Life Insurance Co., where a claimant’s physician reported that the claimant had no ability to lift any weight or reach overhead but the claimant was observed hoisting a bag of dog food over his shoulder and lifting boxes and a chair into the tailgate of his truck.

The Court was not persuaded by this case law and concluded that the video surveillance ofLewandowski is consistent with her self reported limitations and her doctor’s analysis. The Court further noted that any “arguable discrepancies are slight, and certainly do not rise to the level of contradiction found in the cases cited by Companion Life.”

Court Finds That Claimants Level Of Pain Can Not Be Determined By Watching Video Surveillance

Finally, Companion Life argued that Lewandowski did not act like she was in pain in the video. The Court rejected that argument, concluding that it “is impossible to surmise from 22 minutes of video taken over the course of two days what Lewandowski’s level of pain and fatigue are during or following such daily activity based upon the look of her face.” The Court concluded that, given “the dearth of information in Lewandowski’s file, it seems improbable that Lewandowski’s level of pain could be judged based solely on 22 minutes of video, particularly given the decision not to conduct a physical evaluation. The Court relied on the case of Hanusik v. Hartford Life Insurance Co., that states that video evidence cannot be reasonably relied on to refute claims that claimant cannot function after she over-exerts herself.