Covid Long-Haulers and Denied Disability

Santa Clara, CAIf you are a COVID 19 long-hauler and your disability claim has been denied, don’t give up – don’t accept excuses from your insurer. The medical and legal community, state and federal governments (including the CDC) and a recent global survey recognize Long COVID as a disability and insurers will increasingly find it difficult to deny LTD benefits.

Long COVID Brain Fog

Long COVID 19 symptoms can range from mild to incapacitating and they can last for months. Symptoms include fatigue, heart palpitations, chest pain, shortness of breath, sleep disorders, fevers, gastrointestinal symptoms, anxiety, depression and “brain fog”.  The latter symptom can be good news for insurance companies. Applying for long term disability benefits can be challenging and frustrating for any illness or injury but brain fog – memory loss, confusion, inability to concentrate or focus – not only is difficult to prove; the application itself could be almost impossible to undertake without legal help.

The Lancet, one of world's oldest and best-known general medical journals, published results of a global survey conducted in 2020. Researchers found that almost 25 percent of people suffering from long COVID 19 were unable to return to work. Of those patients, 85.9 percent complained of relapses months after their initial infection, usually triggered by mental or physical exertion such as working.

The Lancet survey included 3,762 long-haulers from 56 countries. Only 27.3 per cent of those who were working before contracting COVID-19 were working as many hours as they had worked before they became ill. Many remained unable to return to work in any capacity. Over 88 percent of respondents experienced memory and cognitive dysfunction, and with “substantial impact” on work and daily life.

“Memory and cognitive dysfunction, together with other commonly reported neuropsychiatric symptoms, may point to larger neurological issues involving both the central and peripheral nervous system…The reduced work capacity because of cognitive dysfunction, in addition to other debilitating symptoms, translated into the loss of hours, jobs, and ability to work relative to pre-illness levels.

For those who returned to their job, respondents reported experiencing relapses triggered by the mental exertion and stress of work, often needing to go back on leave. This emphasizes the importance of all patients having adequate time off to recover, being able to qualify for disability benefits if long-term assistance is needed, and receiving accommodations at work including telecommuting, flexible hours, and phased returns. Lower wage earners may find it especially challenging to access accommodations and benefits, yet they are in need of protections the most to ensure financial stability.”

Recognizing Long COVID

The CDC states that long COVID is a physical or mental impairment and it can be a disability under the Americans with Disabilities Act (ADA), which may be relevant to claims regarding long COVID: federal law protects people with disabilities from discrimination, and denied disability may be discriminatory. As well, the Office for Civil Rights of the Department of Health and Human Services and the Civil Rights Division of the Department of Justice have joined together to provide guidance on Long Covid as a disability.

Although federal law states that long COVID is a physical or mental impairment under the ADA, each case must be assessed individually to determine whether a person’s long COVID condition or any of its symptoms substantially limits a major life activity. A person with long COVID has a disability if the person’s condition or any of its symptoms is a “physical or mental” impairment that “substantially limits” one or more major life activities.

Here are a few federal resources for people with symptoms of long COVID:

• The Office for Civil Rights of the Department of Health and Human Services (HHS) has a page on civil rights and COVID-19 and you can file a complaint here
• The Civil Rights Division of the Department of Justice discusses topics related to COVID-19 and the ADA and provides information about how to file a complaint.
• CDC’s website provides information on post-COVID conditions, including long COVID
• The Equal Employment Opportunity Commission provides COVID-19 information and resources and guidance about filing an employment discrimination charge.

Symptoms such as fatigue, brain fog, and depression are “invisible” or subjective symptoms. They can be difficult for long-haulers to “prove” they are as sick as they say. Insurance companies take advantage of this - despite medical evidence. An experienced disability lawyer understands the nuances of an individual policy and can gather the necessary medical evidence needed to appeal - to make a successful challenge to a denial of or premature termination of long-term disability benefits.