MK Disability Lawyers' Statement on COVID-19 - Read Post

Based on information from the World Health Organization which has been repeated to us time and time again through the media, we have come to understand that 80 percent of those infected with COVID-19 will experience only mild symptoms or be entirely asymptomatic and will recover after only two weeks, while the elderly and those with pre-existing medical conditions are more likely to suffer serious complications and possibly, death.  However, many of these reported statistics fail to consider the growing number of people who are reporting serious, long-lasting and debilitating effects of the virus, weeks and months after infection.  These individuals are now commonly referred to as “long-haulers”.

Unofficially, long-haulers are commonly characterized as those that have been sick with symptoms of COVID-19 for one month or more and continue to experience the impact of the virus in every aspect of their daily functioning.  The number of so-called long-haulers is still unknown, however, in the U.S., estimates have been in the tens of thousands.  According to what little is still known about long-haulers, it appears that most are previously fit and healthy women with an average age of 44.  Often they report having experienced only mild symptoms of the infection initially and may not have been tested for COVID-19 (due to not meeting the early criteria or having the symptoms required for testing) or they may have tested negative for the virus (due to waiting too long to be tested or for some other cause for false-negative test results). (Long-Haulers Are Redefining COVID-19, The Atlantic, August 19, 2020)

Long-haulers report symptoms commonly associated with COVID-19, including fever, cough, and shortness of breath.  However, they also report experiencing an ever-growing list of other serious symptoms including gastrointestinal, cardiac and neurological problems (such as hallucinations, delirium, short-term memory loss), as well as vibrating sensations when they touch surfaces and problems with their sympathetic nervous system (which controls unconscious processes like heartbeats and breathing).  They may feel out of breath when their oxygen levels are normal and feel their heart racing when their EKG readings are normal.  They often describe “brain fog” and intense fatigue and anxiety and depression.  Many of their symptoms may come and go and vary in severity over time.  

Unfortunately, given the nature of their symptoms, long-haulers may be faced with skepticism from their friends, family, employers, doctors and their LTD insurance companies.  How could they have one set of symptoms one day and an entirely different set of symptoms the next?  How could some of their symptoms become more severe over time, rather than improve?  These are questions that go directly to a long-hauler’s credibility and put them at risk of misdiagnosis by healthcare providers and/or denial of LTD benefits by their LTD insurance companies. 

Long-haulers face a myriad of hurdles; physical, emotional and financial.  Their issues are complicated and difficult to navigate; particularly given the nature and extent of their physical and cognitive impairment.  When they are told that their symptoms are “all in their head” or caused by stress or anxiety, they are left to feel alone and helpless to deal with the issues before them.  They may feel frustrated by the lack of recognition that they are suffering and limited in their functioning.  Their relationships with family and friends may suffer and their employment relationships may deteriorate if they are not able to work or not able to meet their employers’ expectations.  

For long-haulers, this might be the first time they have experienced serious financial, emotional and medical issues.  However, these same struggles are not new for a vast number of chronic pain and chronic fatigue sufferers who have been struggling to be seen and heard by the medical community and also by their LTD insurance companies, for decades.  

For those unable to work due to conditions such as myalgic encephalomyelitis/chronic fatigue syndrome (ME/CFS) and complex regional pain syndrome, including fibromyalgia, LTD benefit disputes are all too common. There is a long history of insurance companies denying LTD benefit claims on the basis of there being no “objective” evidence of disability or no “objective” evidence to support the severity of a condition.  Insurance companies are notorious for denying claims where the only evidence of disability is subjective, meaning there are no tests that confirm the nature or severity of the condition and the only basis for the LTD claim are self-reported symptoms and functional abilities.  Long-haulers, particularly those who do not have a positive COVID-19 test result in hand, will undoubtedly struggle in proving disability to their LTD insurance companies.  

If it becomes clear that you are not able to work due to COVID-19 related symptoms, even long after you became infected, you may have the option to claim Short-Term (STD) and Long-Term Disability benefits, either pursuant to an individual (or private) insurance policy or under your group insurance policy with your employer.  

To be eligible for LTD benefits under most group benefit plans, you must satisfy various terms and conditions in your insurance policy.  The terms may vary between policies, however, generally, you must satisfy the insurance company (or benefit plan administrator for STD) that you are “unable to perform the essential duties of your own occupation for the initial period of disability (usually 24 months) and thereafter, you are unable to perform the duties of any (gainful) occupation”.  There will be other conditions of payment, such as getting appropriate treatment, attending independent medical assessments, and participating in insurance sponsored rehab programs. 

If you are self-employed, you might have your own individual (or private) LTD policy.  These policies vary greatly with respect to what benefits are available to you and corresponding eligibility requirements.  In addition to benefits for “total disability”, you might also have coverage for “partial disability” and “residual disability”.  There might also be various benefits related to business loss, in the event that you become disabled.  Generally, you will need to demonstrate that you are disabled for the purpose of the benefit you are applying for.  This may mean that you will need to prove that you are not able to work at all or it may mean that your condition prevents you from working full-time or from performing some of your usual duties.  

Whether you are claiming disability benefits under a group or individual policy, the insurance company will require you to provide proof or evidence of disability.  Long-haulers, just like those suffering from chronic fatigue, chronic pain and mental health-related conditions, will only have subjective evidence of disability; what they report to their doctors and other healthcare providers.  Therefore, it is important that the self-reported symptoms, restrictions and limitations that are relied on as the basis of the LTD claim are corroborated and confirmed by other means. 

Long-haulers can benefit from the lessons learned by those suffering similar symptoms who have been successful in their LTD claims or in their LTD lawsuits.  Since there may be no blood test, x-ray or other objective measures to explain the severity of long-haulers’ conditions, they must rely on other means to persuade the insurance companies to approve their LTD claims.

If you are suffering the ongoing effects of COVID-19 infection and you are not able to work, we encourage you to consider the following tips for applying for LTD benefits:

The Three Most Important Tips for Applying/Appealing an LTD Claim for Long-Haulers

Functionality is key. 

Always focus your answers and remind your doctor(s) to focus answers to questions on forms and in telephone calls, on your functioning; that is what you can and can not do, as a result of your symptoms.  This is what the insurance company should be most concerned with in assessing your LTD claim.

Many people believe that a diagnosis is necessary to be successful in an LTD claim.  Often with long-haulers it takes a long-time to get a diagnosis and sometimes the cause of your symptoms might never be determined or you might even be misdiagnosed.  Approval for LTD does not hinge on a specific diagnosis; it’s all about whether you meet the definition of disability under the plan/policy.

In terms of meeting the definition of disability, it will help your LTD claims representative to know what the duties of your “own occupation” are and what specifically prevents you from performing those duties.  For example, pain and fatigue may prevent you from standing, walking, sitting, concentrating, remembering, communicating, regulating emotions, etc. These are all functions you might need for your job. Therefore, the insurance company needs to understand that your symptoms prevent you from doing both the physical and cognitive demands of your job on a consistent basis or at all.

Treatment is critical.

While treatment is extremely important for you, medically, it is also important for proving your LTD claim.  This holds true for all LTD claims, but especially so for claims for long-haulers.  The nature and extent of your treatment tells the insurance company a lot about the severity of your condition, about your self-reported restrictions and limitations, and about your credibility.  When all you have to rely on is what you are telling your doctors, you need another means to support your claim.  Treatment is one of the best ways to prove to your insurance company that you are not able to do your job and that you are not malingering or exaggerating your condition.

Follow your doctor’s orders; meaning you should be filling prescriptions, attending specialists’ appointments, getting investigations done (such as x-rays, blood tests, MRI’s, medical assessments, etc.), regularly attending recommended or prescribed therapies (such as physical therapy, massage, acupuncture, cognitive behavioural therapy, group therapies, etc.), and following your doctors’ recommendations regarding your functional limitations and restrictions (such as, trying to go on walks, not overdoing it, rest as needed, limiting bending, walking, sitting, etc.).  Do not be afraid to advocate for yourself by researching your condition and talking to your doctor about possible referrals or treatments. 

Your insurance company is more likely to be convinced of the severity of your post-COVID-19 condition and of your self-reported functional restrictions and limitations if there are medical records that document a history of self-reporting that is consistent with what your doctors observe (and which might be observed in the insurance company’s surveillance).  

If your family doctor has referred you for countless tests and investigations and to various specialists, that would suggest that your doctor believes you and believes that your condition is so severe as to warrant these investigations and referrals.  Specialist reports will lend additional credibility and validity to your self-reports, as they will also be consistent with what your family doctor and you are reporting.  It should be clear to the insurance company, from all the testing and appointments and treatments that you are not choosing to be disabled.  Who would opt to spend their days going from doctor to doctor and being poked and prodded and undergoing often painful (emotionally and physically) treatments, if they could work and earn their full salary?

Credibility can make or break a claim.

When completing forms or speaking with the insurance company representative who is assessing your claim, remember to be open and honest.  You should also be careful not to be overly optimistic about your return to work or overstate your actual functional abilities.  You should include all of your symptoms in your claim and explain the waxing and waning of those symptoms. 

Remember, it is not unreasonable to assume that the insurance company wants to pay legitimate claims.  Since you are legitimately struggling with your functioning, be clear about what you can not do, but also be clear on what you can do.  You do not need to be bedridden everyday or in a hospital to be eligible for LTD benefits.  You must only satisfy the insurance company that you are not able to do the essential duties of your “own occupation” or after the initial period (usually 24 months), that you are not able to do the duties of “any occupation”.  (Note: the definitions of disability in your policy might be slightly different.)  

If the insurance company finds a medical record or conducts surveillance and finds inconsistencies in what you have reported to them versus what you are doing in the “real world” or what you have reported to your doctors, your credibility comes into question and your claim becomes that much more difficult to prove. 

Overstating your abilities or optimism for your recovery can be relied on by the insurance company to deny or terminate your claim. It may be difficult to admit to ourselves and others that we are not doing well and that we are not coping as well as we would like.  While optimism and positivity may be key to recovery or key to living with a disabling condition, your insurance company could easily misconstrue these sentiments and use them as a basis for denying/terminating your claim or initiating rehabilitation and return to work efforts, well before you are ready.

You May Still Need Outside Help to Prove Your “Invisible Condition” 

Applying for LTD for a condition stemming from COVID-19 infection is a difficult task, at the best of times, and even more so when you are struggling with the symptoms of your disability.  It is important that you get help where you can to ensure that your application is complete, accurate and most of all, persuasive to your insurance company to increase the likelihood that your claim will be approved and to avoid the stress of appealing or litigating a denial. 

From decades of experience litigating LTD claims from both sides (as in-house counsel for insurance companies defending LTD claims and as plaintiff’s counsel, representing disabled persons in their complex LTD disputes with all insurance companies in Canada), we know that the type of LTD claims that will be made for long-haulers (such as those for chronic pain, chronic fatigue and mental health conditions) are the most common types of claims that are denied or later, terminated.  We understand why these claims were not successful and how to persuade insurance companies of their legitimacy and resolve these disputes for our disabled clients. 

Together, our three law partners have over 50 years of LTD litigation experience representing professionals, self-employed individuals and employees with conditions akin to those experienced by long-haulers.  Based on that experience, we have put together the above list of the three most important tips for long-haulers applying for or appealing their LTD claims.  It is our hope that our suggestions will increase the likelihood of these claims being approved early on, so that you can focus on your recovery without worrying as much about losing your income and other health-related benefits and possibly, your job.

Help With Your STD or LTD Application, Appeal and Litigation

We encourage you to contact us if your STD or LTD claim has been denied or terminated by your insurance company. We offer free consultations to help you decide whether to appeal the denial of your claim or whether to proceed straight to litigation.  Remember, there is no requirement that you appeal the denial or termination of your STD/LTD claim.  (Note: Unionized employees may be required to grieve STD and/or LTD denials/terminations, depending on the wording of their collective agreements.  We are able to review collective agreements for jurisdiction over STD/LTD issues.)

As an added support, during this pandemic only, we are offering long-haulers free consultations at the sick leave/LTD application stage.  If you are considering sick leave and/or applying for STD or LTD, we encourage you to contact MK Disability Lawyers to schedule a time for us to discuss the details of your disability claim.  We will discuss the claims process with you, provide you with direction with respect to what to include in your initial claim and review your claim forms before you submit them.  Every claim is different and it is important that you use wording and provide medical evidence that will be most supportive and persuasive to the insurance company and result in the approval of your claim.  

We appreciate that there are a number of resources available to help you in your LTD claim application and appeal.  Unlike many other resources provided by your employer and insurance company and union, we have the unique perspective that comes only from seeing and litigating countless LTD claims for conditions, such as those of experienced by long-haulers (and all variety of other medical conditions) that have been denied or terminated and we can use that insight and experience to help you avoid those outcomes.  One of our partners, Courtney Mulqueen, also has the added insight that only comes from having worked for insurance companies defending LTD claims.  

If you have specific questions about LTD, please contact us to schedule a free individual consultation.  We also invite you to visit our website www.mkdisabilitylawyers.com, where you will find an extensive collection of blog articles about LTD, including our most recent articles:
LTD and COVID-19: Applying for Disability Benefits During COVID-19,” “LTD and COVID-19: Mental Health Claims Related to the Pandemic” and “Struggling to Be Seen and Believed: Making an LTD Claim for an “Invisible Condition” and our “Guide to LTD for Union Representatives”, as well as other information related to applying LTD.