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Hartford abused its discretion by relying on video surveillance and ignoring medical evidence

Attorney Stephen JessupAuthor: Attorney Stephen Jessup

Here is an other example of case against Hartford Insurance Company which shows that you can never let your guard down when it comes to protecting your payment of long term disability benefits. Prior to going on disability, Michael O. was a heavy equipment operator in Virginia. In 2004 he was involved in an automobile accident, which resulted in having to undergo neck surgery. Despite the seriousness of his injury he was able to return to work. However, his condition deteriorated and he continued to experience a great deal of pain and in 2006 he was required to undergo a second neck surgery. Following his second surgery he filed for long term disability benefits under his employer’s ERISA governed long term disability policy with Hartford. His claim for benefits was approved by Hartford, effective October 2006. For two years Hartford paid his benefits under the “own occupation” definition of disability contained in his policy.

Hartford’s “Any Occupation” Review

Like the overwhelming majority of employer provided ERISA long term disability policies, Mr. Osborne’s policy contained a change in definition from “own occupation” to “any occupation” after 24 months of benefits. In Mr. O’s case, and maybe the saving grace of his claim, the language of his policy seemed to indicate that to satisfy the terms and conditions of benefits under the “any occupation” definition there would have to be a showing that he be able to perform an occupation at a medium physical demand level as defined by the Department of Labor.

In 2008, Hartford began its review of Mr. O’s entitlement to benefits under the “any occupation” definition of disability. After reviewing all of the medical evidence presented by Mr. O’s treatment providers, he was deemed to be disabled from “any occupation” beyond the October 2008 change in definition of disability.

The Notorious Hartford “Milestone” Interview Request

In many disability claims, one of the most likely times for a denial of benefits is at the “any occupation” stage. Surviving this review would normally indicate that one’s claim is fairly secure. However, as with all long term disability benefits, continued monthly benefits is never guaranteed and as Mr. O discovered, an insurance company can change its position very quickly.

In April of 2009, approximately six months after finding Mr. O was disabled from performing the material and substantial duties of “any occupation,” Hartford wanted to conduct what the Court refers to in its opinion as a “milestone” interview. It is never made clear what the “milestone” was that prompted Hartford to want to conduct an interview. After several unsuccessful attempts were made to contact Mr. O, Hartford decided to place Mr. O under video surveillance.

Video Surveillance Conducted By Hartford

In June of 2009, Hartford hired an investigator to conduct two days of surveillance. On the first day of scheduled surveillance Mr. O was not observed. However, on the second day he was videoed performing two hours of yard work. During the course of the surveillance he was observed, “[U]sing a gas-powered weed trimmer, lifting a wheelbarrow out of the bed of his truck, shoveling mulch from a trailer into the wheelbarrow…” appearing to perform all of the physical activities without restriction or limitation.

Hartford Field Interview

In September of 2009, Hartford met with Mr. O to conduct a field interview. It should be noted that many denials of disability benefits by Hartford usually involve a two prong attack by way of video surveillance and a subsequent field interview with a Hartford representative. See our videos regarding the Hartford field interview process. During the course of the interview Mr. O was shown the video surveillance to which he indicated that he had performed the work to help a friend prepare for a graduation party and that he experienced a high level of pain the following day as a result of overexerting himself.

Medical Review

Following the field interview, Hartford’s medical case manager contacted Mr. O’s treating physicians to discuss his medical condition as well as providing the video surveillance for their review. Despite the contents of the surveillance Mr. O’s doctor remained convinced that he was unable to perform the level of physical activity required for gainful employment and recommended that Hartford conduct a functional capacity evaluation (FCE) to properly document Mr. O’s physical restrictions and limitations.

Instead of sending Mr. Osborne for an FCE, Hartford forwarded his medical records to a Neurologist to conduct a review of the file. Mr. O was never physically examined by any of Hartford’s medical professionals. Hartford’s reviewing neurologist determined that based upon the medical records and information available, with specific attention to the video surveillance, that Mr. O would be able to work on a full time basis. In turn, on January 12, 2010, Hartford denied his claim for benefits.

Mr. Osborne’s Appeal

As required under the policy, Mr. O appealed Hartford’s decision. As additional evidence of disability, Mr. Os underwent an eight and a half hour Functional Capacity Evaluation. In the results of the examination it was noted that he had put forth his best effort and that based on his performance hid doctor described his overall condition as, “[S]imply a mess with a guarded prognosis for returning to work in the competitive labor market.” He argued that he was not able to work a consistent 8 hour work day on a full time basis and that Hartford had improperly relied on the surveillance video. His doctors continued to adamantly voice their opinion that he was not physically able to return to full time work.

Upon submitting his appeal, Hartford again chose to have his medical records and information reviewed as opposed to having him physically examined. Hartford turned the file over to the University Disability Consortium to be reviewed by a Dr. Beatrice Engstrand. Dr. Engstrand determined that Mr. O was capable of working “full-time, consistently, with restrictions of no more than medium level work.” Based upon Dr. Engstrand’s opinion, Hartford upheld its denial of Mr. Osborne’s claim.

Long Term Disability Lawsuit Filed Against Hartford

Following the denial, Mr. O brought suit in Federal Court in the Western District of Virginia. Following review of all of the documentation in Mr. O’s claim file, the Judge found that Hartford had abused its discretion for failing to conduct a meaningful analysis of the evidence submitted by Mr. O and for the inordinate amount of emphasis Hartford placed on the video surveillance. Specifically the Court notes that even though Hartford’s reviewing doctor, Dr. Engstrand claims to have reviewed all the information presented to her that she almost exclusively focused on the surveillance, giving no weight to the FCE performed which indicated Mr. O’s inability to work. The Court acknowledged that the, “[T]wo hour segment of surveillance footage reveals some discrepancies between O’s claimed and observed functionality, it does not provide substantial evidence that O is capable of performing medium-level work on a full time basis.” The Court found that Hartford’s “failure to seriously engage in a discussion” of Mr. O’s favorable evidence served as further support of its ruling that Hartford abused its discretion in terminating benefits, stating:

On this record, the court is simply unable to conclude that Hartford followed a reasoned decision making process or that it presented substantial evidence to support its determination that Mr. O is capable of performing unrestricted medium work on a full-time basis.

The Court ultimately remanded the claim back to Hartford for further review of the material in accordance with the Judge’s order.

What Can We Learn From This Case?

The Federal Court for the Western District of Virginia provides some insight as to the factors it will consider to determine if an insurance company abused its discretion in denying a claim. Specifically, it provides additional argument against the over reliance of video surveillance in light of medical documentation and opinions. What cannot be overlooked is the fact that Mr. Osborne’s claim was denied in January of 2010, and that it wasn’t until September of 2012 that a Judge ruled in his favor. However, it is equally important to realize that by remanding the claim back to Hartford, the Judge did not award any back benefits. The Judge only ruled that Hartford had to conduct another review of the material. There is no guarantee that Hartford will ultimately change its decision or that Mr. Osborne will receive any benefits. This case serves as another example that winning the battle doesn’t mean you’ll win the war.

Attorneys Dell and Schaefer did not represent Mr. Osborne or have any involvement in his case, but has represented many claimants in actions against Hartford with similar fact patterns. Contact us for a free consultation.



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