Video surveillance is directly representative of the occupational duties that the person was doing at the time he became disabled. Meaning, does the video surveillance have any weight at all if it does not relate to the type of the job that the person does?
It’s kind of a difficult question to answer. The reason is because what they capture in that disability video surveillance is not necessarily or evenly remotely close sometimes with what the job involved, what the general work activities are. They’ll catch you walking, they’ll catch you driving your car or they can catch you picking up your kids from school. Do any of those things involve the material duties of your occupation, as a surgeon, as a lawyer, as a police officer? No, generally it does not. But I guess what it does capture is just your general activities, your general capabilities, and restrictions and limitations.
Let me give examples of two more recent cases – a case against Prudential Insurance Company, where, the person who is disabled, Prudential denied his claim, this person was a Vice-President of underwriting for a large insurance company, ironically. She was seen on video engaging in activities such as walking, lifting, carrying objects without any apparent discomfort on video. And the court basically said that – you can’t rely on just those activities alone to deny her claim because Prudential Insurance Company never considered how the activities of walking, lifting and carrying demonstrate how she can perform her duties of her occupation as a Vice-President of underwriting. In another case, there was an executive secretary and they got her on video again doing something like shopping or driving her car and they said – well, the video doesn’t show anything about how she is able to type or perform the type of hand movements with the frequency required of her own occupation as an executive secretary. So again, walking, lifting something, talking or even if she was playing tennis has nothing to do with the fine motor skills required for her to do typing.
And the unfortunate thing is that, this is once the courts have already gotten a hold of it, so you have to fight, you have to go through the appeal process, litigation before a court finally comes to that point. Insurance companies will still try to deny the claims regardless of that. For example if I am doing an appeal on an ERISA case and all of a sudden have a video surveillance that shows what you can do in a sedentary level occupation. For example, we are lawyers. Technically, under the physical requirements, we work a sedentary occupation but I guarantee you we are not getting paid because we are able to lift a negligible amount of weight from time to time but the insurance company will still say – well, we think you can sit at your desk all day, you can do this, so you can do your job and not take into account that you are getting paid for your ability. So the insurance companies, regardless of this case law, will still look to deny that claim. If they get you on the surveillance, they’ll say we think your job was light occupation like work duties, so we think you can do your job even though it is not in any way, shape or form giving any credit to what the job really was.