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Sun Life Denial in Reflex Sympathetic Dystrophy Disability Case Overruled…Again!

Ten Year Disability Due to RSD / CRPS and Fibromyalgia

In a disability insurance case that has been pending for 10 years without an approval, Sun Life Assurance company of Canada has been reversed by a court for the second time. When Diahann Gross filed a claim for disability insurance benefits under her employer’s disability plan in 2006, neither she nor her Massachusetts disability attorney ever expected to be litigating with Sun Life 10 years down the road, much less in her second trip to court on the same claim. Gross suffers from disability due to Reflex Sympathetic Dystrophy -RSD (also called Complex Regional Pain Syndrome, or CRPS) and fibromyalgia.  Sun Life refuses to believe that it is causing her an inability to work.  In the second round of the lawsuit involving this claim, Sun Life denied Gross’s disability claim because of surveillance video that Sun Life it obtained.

Medical Records Proved Disability, But Surveillance Video Raised Questions

The case had been appealed to a federal circuit court of appeal, where a panel of First Circuit judges reversed Sun Life’s earlier denial, finding that the medical evidence easily prove that Gross is disabled. However, Sun Life had obtained three separate short periods of surveillance video which the court decided had to be evaluated. When the case was sent back to Sun Life for evaluation, Sun Life relied upon brief snippets of  video to again deny her claim.  Sun Life’s disability adjuster decided the video showed Gross doing things that were inconsistent with the restrictions stated in the medical records.

Gross’s records showed that she suffered from significant chronic pain which caused an inability to sit or stand for extended periods, and severely limited her ability in her right arm, as well as her ability to bend, kneel, or crouch. The video taken Sun Life’s disability private investigators showed her holding a mobile phone, using her right hand open a door, driving for a total of 1 to 2 hours, reaching for items above her head in a store, carrying shopping bags, and other short term minor activities. Sun Life had physicians review the video, and they opined that the video showed inconsistent activities when compared to the restrictions stated in the medical records.

Sun Life’s disability representative denied the claim, but apparently did not explain anything about the short duration of the activity seen on the video.  Sun Life blindly relied upon the conclusions of doctors that reviewed paper records and one physician who had examined Gross to conclude that she was able to work based on the video, without actually analyzing whether the video depicted a person who could work.

Court:  Video Still Consistent With Symptoms That Change “Day by Day ” or “Minute by Minute”

The judge disagreed.  In the court’s order, the judge focused on the records from doctors that had actually examined Gross, including the one Sun Life examiner that had seen her. Several of the treating doctors concluded that the video was not inconsistent with the medical records. Similarly, a physical therapist who performed a Functional Capacity Evaluation (FCE – a test of a person’s ability to sit, stand, lift, walk, etc.) concluded that the video was consistent with the restrictions the FCE documented.

The judge focused on whether the surveillance cast doubt upon Sun Life’s conclusion.  Specifically, the judge stated that the videos would have to show Gross “performing activities that ‘directly contradict’ the self-reported limitations upon which her treating physicians have offered their diagnoses.”  The judge decided that the video did not cast doubt on Gross’s ability or credibility.

A key factor for the judge was medical records which showed that Gross’s condition produced good days and bad days.  Though not stated by the judge, it seems that video taken for short periods of time that did not show Gross engaging in activity over long stretches could not trump the written records.  This was particularly true when Gross’s symptoms should be expected to wax and wane each day.

One doctor “explicity characterized the videos as consistent with these conditions given that their effects ‘can vary from day to day – even minuted to minute.”

The judge also noted that even Sun Life’s doctor thought Gross should be evaluated one more time, yet Sun Life chose not to follow that request.

TAKEAWAY #1:  Short surveillance video captures a snapshot of a disabled person’s life.  Even when video shows a person capable of doing things for short periods on some days, that is can be entirely consistent with disabling conditions which do not produce static, unchanging symptoms.  A person can have good days and bad days, and video that shows a snapshot of their life may be capturing a good day.

TAKEAWAY #2:  If your conditions are never the same each day, do not describe them that way on forms.  Explain the way pain, fatigue, or symptoms get worse or better, particularly if they change unpredictably.  It is easier to be consistent when you have described a range of symptoms, than when you describe your impairments like an unchanging picture.


CASE:  Gross v. Sun Life Assurance Company of Canada, #09-11678-RWZ (D. Mass. 6/24/2016).

If you would like to speak to an experienced ERISA disability attorney about your Sun Life disability claim, call (866) 282-5260 to schedule a free consultation.


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