JJ Conway
J.J. Conway Law
As socializing returned after the Covid-19 pandemic, a typical conversation icebreaker was to share how one spent the pandemic. As the worldwide health crisis recedes further into history, those “pandemic share” stories are declining as well. The stories ranged from the funny to the harrowing. Most ended happily. Some did not. Like so many of life’s unpleasantries, we want to move on from this and not dwell on the past. However, there is one group who would gladly move on, but for some mysterious reason, the virus’s effects will not let go. “Covid’s long-haulers,” as the group is known, have emerged as a new category of individuals needing considerable medical treatment, employment-related protections, and disability insurance coverage at a rate significantly greater than the general population.
According to the U.S. Department of Health and Human Services, approximately 23 million Americans currently continue to suffer with some form of long-term complications following a Covid-19 infection. The precise reason has eluded medical researchers. They have labeled the condition “Post-Covid Syndrome,” and this diagnosis is now appearing with greater frequency in the treatment notes following patient visits with their physicians. The condition has even earned its own medical code, “U09.9 post-Covid condition, unspecified.”
Medically, the term “syndrome” is used when a medical diagnosis can be made following a series of common symptoms such that it is capable of labeling and identification, but the actual cause is not fully known. Post-Covid Syndrome manifests itself in many ways including memory deficits, seizure disorders, fatigue, muscle pain, difficulties with digestion, among others.
Reports and anecdotes of people suffering with a cognitively challenging “brain fog” have been widespread. Many who had the virus and fully recovered did experience some period of fogginess in the days and even weeks after testing positive for the condition. The problem for many long-haulers is that beyond the actual Covid-19 infection testing, there are few tools available for proving the existence of their condition objectively. Many of the symptoms, though credible, are self-reported. Often, the condition will appear in a hugely industrious person who, after the infection, suddenly cannot do much and is experiencing strange new conditions almost daily.
Unsurprisingly, a new legal battleground over these claims has opened in the disability insurance area. Claims filed by Covid long-haulers are being routinely denied by large insurers. Newly filed claims are closely scrutinized, much like conditions such as chronic fatigue syndrome or fibromyalgia, which often defied objective diagnostic measures. Prior to 2020, disability insurers did not have to grapple with the effects of widespread Covid-19 infections. That has now changed.
The group disability contracts issued prior to the pandemic were based on a risk matrix that was statistical. Insurers would look at the type of work an organization performs, the physicality of the work, an organization’s claims history, and the relative youth and health of its organization. The development of an entirely new and potentially permanently disabling condition upset those statistical assumptions. There is little interest, it seems, in recognizing an entirely new illness that would result in an influx of new disability claims, particularly since no one knows whether long-haulers will get better.
Case law has begun to illustrate this point. One of the first reported cases of Post-Covid Syndrome involved a trial attorney and marathoner who had billing records showing that over a three-month period (prior to contracting Covid-19) he recorded billed time of 700 hours, yet the virus took him down. Abrams v. Unum Life Ins. Co. (W.D. Wash. December 27, 2022). A federal district court evaluated his abilities prior to his Covid-19 infection and, after reviewing the opinions of his physicians and law firm colleagues, ruled in his favor. Unum has since appealed.
Legal reporters have begun featuring the filing of several federal lawsuits for Covid long-haulers against some of the county’s largest insurers alleging wrongfully denied claims. They share a common link in that the denials often zero in on the lack of objective medical evidence, and then maintain that even if the claimant’s subjective complaints were true, they can still work, despite their illnesses. So far, most have settled privately without a public decision.
As with most disputes surrounding disability insurance, there is an active challenge to newly filed claims by the industry. When this happens, the disability claims are routinely denied, and then as the claims level off, they are treated as any other condition. The only real question is how long will that take?
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John Joseph (J.J.) Conway is an employee benefits and ERISA attorney and litigator and founder of J.J. Conway Law in Royal Oak, Michigan.
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