New Jersey Disability Lawyer Blog
We are often faced with assisting a disabled client who has been denied benefits from Cigna, Prudential, Aetna, Hartford or Unum based on a brief video surveillance of their daily activities. Our clients ask us, how can a company justify a denial on the flimsy basis that they saw me walking my dog, or taking my daughter to school? And, do they even have the right to videotape me?
The answer to that question derives from the influential case of Creel v. I.C.E. & Accocs., 771 N.E.2d 1276 (Ind. Ct. App. 2002), where the court determined that videotaping an individual where their actions are open to the public does not surmount to an invasion of privacy. This is because, and as the court explains, invasion of privacy can occur when there is an invasion of one’s private or “physical space,” such as a person’s home. Therefore, there is no invasion of privacy when people are videotaped outside of their private space, such as walking their dog or taking their daughter to school.
Although videotaping claimants cannot generally be considered an invasion of privacy if their actions are recorded in public places, this does not mean that insurance companies can use this surveillance to deny disability claims. In a recent case, Ingravallo v. Hartford Life & Accident Ins. Co., 2013 U.S. Dist. LEXIS 48397 (E.D.N.Y. Mar. 29, 2013), the video surveillance showed the claimant “pushing a baby stroller from her home to a pharmacy two blocks away” and “unloading grocery bags from the trunk of her car.” From this surveillance, the insurance company hypothesized claimant’s ability to work a sedentary job; however, the court determined that this was an inappropriate use of the surveillance video because the classification of disabled depends on claimant’s ability to do work, not “chores.” Therefore, it is improper for an insurance company to use short clips of surveillance video to justify denial of a disability claim where such footage does not depict a claimant’s ability to perform his or her job requirements, but rather, depicts his or her ability to perform “normal activities.” This case was similar to Rigg v. Cont’l Cas. Co., 2004 U.S. Dist. LEXIS 8009, at *16 (N.D. Cal. May 5, 2004), where the court found no correlation between claimant’s limited ability to perform some daily tasks, with the ability to work “as a project manager, facilitating business requirements, and the implementation of accounting software on a global scale.”
We at Bonny G. Rafel have experience handling denials where insurance companies have wrongfully used surveillance to “prove” that claimants were no longer disabled. If you have been denied a disability claim based on such tape-recorded evidence, contact our office so we can review your case and help you “prove” that there is a stark difference between videotaping “chores” versus videotaping your ability to successfully perform your occupation.
By Alison L. Weitzer