Tenth Circuit Finds Termination of Long-Term Disability Benefits Justified by Surveillance of Activities

Gielissen v. Reliance Standard Life Insurance Company, et al., No. 21-1377, 2022 WL 5303482 (10th Cir. Oct. 7, 2022) highlights the impact that surveillance may have on long-term disability benefit claims governed by ERISA. Plaintiff-Appellant Dana Gielissen worked as a physical therapist assistant until she began experiencing significant balance problems after undergoing cochlear implant surgery. Defendant-Appellee Reliance Standard Life Insurance Company paid Gielissen disability benefits for two years under its policy’s “own occupation” definition of disability and then approved her for continued benefits under its policy’s “any occupation” definition of disability. Gielissen represented that she had limited ability to grip, write, and type due to pain. She also claimed difficulty with bending over without falling over and requiring the use of walking sticks or the arm of a friend or family member for assistance with balance. After reviewing some inconsistencies in Gielissen’s medical records, Reliance Standard ordered a few days of sub rosa surveillance on Gielissen’s activities. The surveillance showed her walking a dog for at least twenty minutes in substantial snow. She walked with a widened gait and sometimes held her free arm away from her body, but she did not use an assistive walking device. She also managed the dog tugging on the leash and had no apparent difficulty leaning over to pick up after the dog. After Reliance Standard terminated her LTD claim, Gielissen appealed and submitted an affidavit from a physical therapist who explained that Gielissen, in the surveillance, was walking with an ataxic or uncoordinated gait and engaged in compensating behaviors or balancing issues. On de novo review, the district court ruled in favor of Reliance Standard, finding that the record supported its decision. The Tenth Circuit affirmed the district court.

First, the court addressed Gielissen’s argument that Reliance Standard could only terminate benefits if there was new medical evidence showing improvement of her condition. The court did not decide this issue as a general matter but did find that Reliance Standard did rely on a medical review, which relied on Gielissen’s doctor’s observations. If there is a new medical evidence requirement, this would be enough to satisfy it.

Second, the court noted that its review is de novo, which means that it reviews the reasons given by the claims administrator for discontinuing benefits without giving deference to those reasons. The court is not tasked with evaluating the record and deciding for itself whether a claimant qualifies for benefits.

Third, the court agreed with Reliance Standard’s initial decision that the surveillance videos justify terminating benefits and did not address Gielissen’s other arguments about the appeal evidence. The court explained that Reliance Standard did not need expert medical testimony to interpret the surveillance videos. Even accepting the physical therapist’s opinion that the videos show someone compensating for balance problems, the videos still show that Gielissen can walk briskly and steadily for at least twenty minutes, including over uneven and slippery terrain. “The relevance of that evidence to her disability status is beyond question.” The court also found that Reliance Standard did not have to state what jobs it believes Gielissen can perform given her abilities shown in the surveillance videos. Vocational evidence is not required in every case and Gielissen did not argue that Reliance Standard erred by not seeking vocational evidence or identifying jobs she could perform. The court found that Reliance Standard properly relied on the surveillance to determine that Gielissen was no longer disabled from any occupation.