In Fernandes v. Penncorp Life Insurance Co., Fernandes, a bricklayer with limited education, training or experience, ran his own company. When he suffered a series of injuries and was rendered unable to work, he submitted a claim for benefits under a private insurance plan. The Insurer denied payment on the basis that Fernandes did not meet the definition of “totally disabled” under the policy.
In support of this position, the Insurer presented at trial over 140 hours of surveillance evidence on which it had based its decision, including an 8 hour “highlight reel” which showed Fernandes doing things such as moving furniture, lifting wheelbarrows and tools out of a truck, shovelling cement mix, moving cement blocks, and assorted maintenance work around the house.
The Court nevertheless concluded that the surveillance footage was inherently unreliable because it failed to provide any insight into what Fernandes was doing off camera while he was “recuperating”. In this respect, the Court accepted Fernandes’ evidence that he would typically have 2 to 3 “good days” follows by 4 to 5 “bad days” and that while performing the tasks seen on the video, he was experiencing significant pain.
Importantly, the Court noted that the Insurer had been provided with sufficient medical evidence to support a finding of “total disability”. The only contradictory medical evidence, which was based on a review of the surveillance footage, was a qualified statement that it was “impossible to say” whether Fernandes could return to a full time position as a bricklayer.
The Court held that the Insurer had acted in bad faith by refusing to accept the medical evidence before it and by failing to demonstrate that it had properly considered what tasks were required in order to perform as a bricklayer.
In addition to full entitlements under the policy, the Court awarded $300,000 in punitive and aggravated damages as a result of the humiliation and “great mental distress” caused by refusing to pay out the policy for 6 years when there was “never any doubt” that Fernandes was not totally disabled.
Although this case arose in the context of a denial of insurance benefits, it serves as a warning to anyone seeking to rely on surveillance evidence in the context of a request for accommodation or return to work initiative. Unless the evidence is wholly inconsistent with the employee’s stated restrictions, the evidence may prove to be of limited usefulness and should be used with caution.
If you have any questions about the potential implications of this decision, or any other questions relating to workplace law, please do not hesitate to contact a Mathews Dinsdale lawyer.
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