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Bogus surveillance doesn’t defeat nurse’s claim

The ERISA Law Group represented Deborah Maher in her long term disability claim against her employer, Massachusetts General Hospital. Ms. Maher worked in the Boston area as a Registered Nurse. She developed chronic abdominal pain and related symptoms which her physicians contributed to chronic pancreatitis, pain syndrome, and fibromyalgia. She was prescribed substantial amounts of narcotic pain medications to control the pain. After receiving long term disability benefits for several years the plan administrator, Liberty Life Insurance Company of Boston, terminated her benefits. After Ms. Maher’s first appeal was denied by Liberty, she hired us to submit a second appeal on her behalf.

We filed the second appeal, which was also denied. We then filed suit in district court in Boston. We lost at trial.

We then appealed to the First Circuit Court of Appeal, also in Boston. The First Circuit ruled in Ms. Maher’s favor, remanded the case back to the district court with instructions that it will be reconsidered, and on remand the case settled.

The decision in Maher addressed two important issues. One of the key issues was the Plan and its doctor’s use of portions of surveillance of Ms. Maher.

At every stage of Ms. Maher’s administrative appeal Liberty and the Plan’s reviewing doctors emphasized the alleged inconsistency between Ms. Maher’s self-reported limitations and her conduct depicted in the surveillance video. Instead, the First Circuit reasoned, “it is not apparent to us that any such inconsistency exists.” Ms. Maher reported that her activities varied based on the extent of her pain, nausea, and opportunity to pre-medicate for activities, but she generally spent most of her days in bed. The Court explained that in over 90 hours of surveillance, “the most damming evidence” the Plan identified was 15 minutes in which Ms. Maher carried a bucket or flowerpot and 30 minutes in which she played with her 3-year-old son in the park. On 10 of the 19 days of the surveillance videos available, Ms. Maher engaged in no activities. On other days she would sit or stand outside of her house with her husband for about 20 minutes. The Court reasoned: “Thus, most of the surveillance, far from contradicting Maher’s disability, seems to confirm her lifestyle is generally housebound with occasional limited activities.” The Court distinguished these facts from other cases in which videos showed activities that specifically contradicted claims made by the claimants on how they spent their time and what actions they could tolerate.

The second important factor relied upon by the plan was that Ms. Maher failed to provide supporting evidence of disability from her pain clinics. But the Court noted that in her appeal, Ms. Maher explained her attempts to obtain documentation from those clinics and offer releases to allow the Plan access to the information. She also agreed to be examined by the doctor of the Plan’s choosing. Since two of the three pain clinics were Massachusetts General-affiliated, the information was readily available.

It is noteworthy that the dissenting opinion in the appeals court decision reasoned that the Court should not merely remand the case to the district court for reconsideration, but ordered it to enter judgment in favor of Ms. Maher. That judge reasoned that the records of Ms. Maher’s chronic pain, nausea, vomiting and food intolerance was persuasive evidence that she was disabled from performing the duties of the jobs identified by the Plan and therefore Ms. Maher was entitled to her benefits. Read the Court’s Opinion.

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