Last October we warned disability claimants about a favorite ploy of insurance companies – taking surveillance videos of claimants on the day they are scheduled for an IME. Insurers love videos because they find that if they can catch a claimant doing anything he or she says they are unable to do, some courts are impressed enough by such evidence as to uphold an otherwise shaky benefit denial.

This is especially true if the court feels constrained to give discretion to the plan administrator which is very often the same insurance company which would have to pay the claim if it is upheld. For more on this see.

We like to call this the “Gotcha!” ploy. If insurance companies see you make what they think is a wrong move on video tape, your benefits come to a screeching halt.

Don’t misunderstand us. We don’t have any argument with insurance companies gathering evidence against a faker who tries to collect disability claim benefits fraudulently. Insurers should fight these claims tooth and nail.

On the other hand, insurance companies should not, as they seem to, consider everyone who makes a claim a faker.

A recent case illustrates how far insurance companies will go to use a video in an attempt to put the lie to a claim of disability, In Maher v. Massachusetts General Hospital Long Term Disability Plan, 2011 WL 6061347 (C.A.1 (Mass.))) , a registered nurse claimed she had to stop working because of chronic, disabling stomach pain and the side effects caused by the strong amounts of narcotics she had to use to control the pain. Although her doctors were unable to pin down the exact cause of her pain, they all were certain that she actually was suffering the pain.

Nurse Maher said she could perform some activity from time to time, but said she spent most of her time in bed. After paying benefits for 5 years during which the company videotaped her for 6 days in 2002, 3 days in 2005 and 10 days in 2006, the plan administrator, Liberty Life Assurance of Boston, yelled “Gotcha” and stopped her benefits.

On 10 of the 19 days during which she was photographed, she engaged in no activity. On the other 9 days, she was photographed sitting or standing outside of her home. Out of the entire 90 hours she was before the camera, there were about 15 minutes when she was seen carrying a bucket or pot and 30 minutes when she was seen playing with her children.

Surprise, surprise! The insurer’s doctors (who had never examined Nurse Maher although she offered to submit to an exam) all jumped on the video as proof that the claimant wasn’t disabled and that she could reliably perform a full-time sedentary job.

After careful analysis the 3-judge court found for the claimant, but split on the remedy. Two judges ordered the matter sent back to the District Court, which had found for the insurance company, for further consideration of the claim, while the dissenting judge felt the denial of benefits was so wrong that the court should immediately reinstate them.

In supporting the claim, the court approved language in a case involving a Social Security appeal, Carradine v. Barnhart, 360 F. 3d 751(7th Cir. 2004), where the court found there is a sharp difference between a person being able to perform sporadic household and family duties and being able to work 8 hours a day for 5 consecutive days of the week).

Although insurance companies benefit big time when they can cut off a disability income claim midstream, they should realize it is not a game of “Gotcha”. Real people are hurting and their families are suffering.

It is not any kind of game at all.