“Given the sheer amount of people who had COVID-19, it’s no surprise that some people have symptoms that continued, like fatigue and cognitive problems,” says Brehm, ‘’but when you make a long-term disability claim based on a condition that doesn’t have objectively identifiable markers it can be difficult.” Brehm likens long-COVID cases to chronic fatigue syndrome, where there are no medical tests to prove an illness. And another issue is that some people didn’t test for the coronavirus—they just knew it was COVID and they knew how to treat it – or not.
According to the Mayo Clinic, some people (self-proclaimed as “long haulers) who had COVID-19 continue to experience symptoms after their initial recovery. These post-COVID-19 conditions are generally considered to be effects of COVID-19 that persist for more than four weeks after you've been diagnosed with the COVID-19 virus. COVID-19 can not only affect the lungs: it can also damage many other organs, including the heart, kidneys and the brain. Organ damage may lead to health complications that linger after COVID-19 illness. In some people, lasting health effects may include long-term breathing problems, heart complications, chronic kidney impairment, stroke and Guillain-Barre syndrome — a condition that causes temporary paralysis. It can lead to multisystem inflammatory syndrome where some organs and tissues become severely inflamed.
Say you are suffering from a disabling cognitive impairment (which runs the gamut from memory and thinking problems to dementia and delirium). Your physician hasn’t tested and diagnosed anything specific, like taking an x-ray to see a broken bone, or an MRI to determine multiple sclerosis. “So, your insurer thinks that maybe you just don’t want to return to work and maybe you are faking pain, but they have to look at the circumstances,” explains Brehm. “Is long COVID psychological or is it a not-yet fully understood post-viral syndrome that is physiological and can have a devastating impact?”
And here is another bias. Can you substantiate long COVID without a positive COVID test? Brehm’s answer is yes because that test is just one indicator amongst many. The struggle to help people substantiate their claim boils down to this: How to establish that your disabling symptoms are real without objective testing?
“There are a number of ways to help. We understand that people are struggling with their symptoms and struggling to just get through the day,” Brehm says. When their claim is denied they often lack the energy, tools and resources to challenge the insurance company and their medical examiners. They typically say that this person doesn’t have a diagnosis; maybe these symptoms are not as impairing as they say and bam, your claim is denied.
An experienced attorney could be helpful, although Brehm says that some people can go it alone with success. An attorney is not necessary when you file a claim, but once it has been denied, consider whether an experienced long-term disability lawyer will be helpful. “There are steps and/or assumptions you made on your claim that could be incorrect, especially when ERISA requires you to appeal the denial of your benefits,” Brehm says, “and that may be the last opportunity to validate your claim before going to court. So, a misstep could impact your claim going forward. That is the time I advise people to hire an attorney.
“And a secondary benefit to hiring an attorney is they have the know-how to facilitate other things to help substantiate a claim, such as arranging for a neuropsychological exam, cardio-pulmonary testing for physiological markers to validate symptoms, or to provide current medical literature supporting a finding that your symptoms are known to be present in persons with your condition. An attorney will also make sure your functional limitations meet the definition of disability in the policy, and this may require vocational evidence. It may be important to hire a vocational expert who knows your job requirements, and those of other occupations, and can answer whether your medical restrictions limit you from work.”
Brehm and his firm, Kantor & Kantor, have already experienced long-COVID cases as a bit more complex than, say, fibromyalgia claims. “We see a lot more people trying to go back to work after suffering from the corona virus and this leads to partial disability claims. They struggle to work 10-15 hours a week rather than the regular 40,” adds Brehm.
And, at times, there is surveillance by the insurance company to deal with. “Long -COVID--like most disabilities-- means you can do some activity. Maybe you can’t go shopping Monday because of a flare, but might feel ok by Wednesday,” quips Brehm. “When an insurance company sees someone being active at all, even if it is their ‘good day,’ they typically argue that is evidence of work capability. But that is not always true. There is a good deal of case law standing for the proposition that merely being seen as active on surveillance is not sufficient to deny an insurance claim. It doesn’t tell you much about their functional capacity. Where surveillance can become problematic is if the insurance company sees a claimant doing something they said they cannot do. For example, the insurer asks if you drive. You answer ‘Not anymore,’ because you don’t have nearly the capacity you once did and you don’t consider the short trip to the corner market ‘driving.’ However, this answer gets recorded in your file. Then, if you are seen on surveillance taking that short drive to the market, it negatively impacts your credibility.” This where an experienced attorney comes in to help -- by challenging the insurance company’s presumptions. A lawyer might argue that going shopping is not an occupation, so the fact you go shopping is not material to an evaluation of your ability to work 40 hours a week in a competitive workplace. Or they might clarify that the insurance company is taking your prior statements out of context.
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Brent Dorian Brehm is an accomplished attorney practicing in the fields of disability, life, health, and long term care insurance benefits. He has spent his entire career in the trenches –with Kantor & Kantor LLP, one of the preeminent firms in the area of ERISA and bad faith insurance litigation-- battling multi-billion dollar insurance companies to protect his client's rights. As partner with the firm, Brent has resolved well over 300 disputes with insurance companies on behalf of his clients His efforts have been recognized by three legal magazines, being named a Lawyer on the Fast Track by The Recorder, a Top 20 Lawyer Under 40 by the Daily Journal, and a Super Lawyer by Super Lawyers magazine.