Diahann L. Gross v. Sun Life Assurance Company of Canada is a decision from the U.S. Court of Appeals for the First Circuit. It is the second appeal for a case that began in August 2006 when the Plaintiff, an optician and office manager, became too sick to work. She suffered from chronic and severe debilitating pain which was substantiated by numerous medical reports.

Sun Life rejected her claim for disability benefits on the grounds that surveillance video conducted over a nine-day period of time showed three instances when the Plaintiff acted in apparent conflict with the medical reports. After exhausting her administrative remedies, Gross filed an ERISA lawsuit in the District Court of Massachusetts, which held she was entitled to disability benefits and Sun Life appealed.

On that appeal, the appellate Court found that the “medical evidence supported a finding of disability.” Even so, the Court remanded to Sun Life for resolution of the significance of the video surveillance.

On reevaluation, Sun Life again denied her benefits and she again exhausted her administrative appeals. Again, she filed an ERISA lawsuit. Again, the District Court held she was entitled to disability benefits. Again, Sun Life appealed. In early 2018, the Appellate Court agreed the Plaintiff was entitled to disability benefits retroactive to the time she initially filed her claim in 2006.

Sun Life’s Appeal One: Conflict Between Medical Evidence and Surveillance Report

The Appellate Court noted “multiple medical professionals who examined Gross between 2005 and 2007 reported that she was experiencing a variety of debilitating symptoms.” One of her main problems, in addition to her fibromyalgia, was that she had limited use of her right hand.

Although most medical examiners opined she was disabled, her diagnostic tests were negative, and a few of her doctors recommended she get psychological testing, which she never did get. The most damaging evidence against her disability claim was a surveillance video taken over a nine-day period of time. Three particular incidents caused the Appellate Court concern:

  1. The Plaintiff was observed driving about an hour and a half to her mother’s house with only one stop to rest.
  2. She was observed at Kmart bending down to examine items on a low shelf.
  3. She was observed pumping gas with her right hand, then driving about two hours to a hospital where her mother had been admitted during an emergency.

The Appellate Court remanded to Sun Life for an evaluation of how this video could be reconciled with the medical evidence supporting disability.

Sun Life Appeal Two: Failure of Sun Life to Adequately Refute the Surveillance Evidence

On remand, Sun Life still denied Plaintiff’s claim. The District Court then analyzed the surveillance and medical evidence and explanations offered by both Plaintiff and Sun Life. The District Court still found in favor of the Plaintiff and Sun Life again appealed.

On the second appeal, the Court seemed frustrated with Sun Life. It noted that Sun Life did not take into account any extenuating circumstances of the surveillance. For example, when Plaintiff pumped gas with her right hand and traveled two hours to a hospital, it was in response to receiving an emergency phone call that her mother had been suddenly hospitalized.

Ultimately, the Appellate Court in Sun Life two upheld the District Court’s finding that the Plaintiff was entitled to benefits retroactive to the time she filed her claim in 2006. The Court found that Sun Life gave “undue importance” to the few occasions Plaintiff was on video appearing not to be disabled by her symptoms. The Appellate Court concluded that the Plaintiff “is entitled to disability benefits from Sun Life.” It also ordered Sun Life to pay attorneys’ fees and costs.

This case was not handled by our office, but we felt it could be instructive to claimants who are dealing with surveillance reports that appear to undermine their claim for disability benefits. If you need assistance on a similar matter, contact one of our disability attorneys at Dell & Schaefer for a free consultation.