Howard Levitt: It can be difficult for Long-COVID sufferers to prove they are sick Author of the article:Howard Levitt
Publishing date:Sep 28, 2021
As long as the symptoms experienced by a long-hauler meet the definition of disability, as set out in the policy, and there is medical evidence to support this, insurance payouts should be guaranteed. By Howard Levitt and Rob Lilly
With the ongoing success of Canada’s COVID-19 vaccination program and green shoots of normality appearing, hope burgeoned that life pre-pandemic was set to resume.
The reopening of global travel and other harbingers of a return to pre-COVID-19 conditions had many breathing a sigh of relief. The worst of the pandemic appeared over. Yet here we are in the fourth wave. The highly contagious Delta variant is causing case numbers to surge higher than ever before in some parts of Canada. And the spectre of new mutations is adding to the collective anxiety.
While it is true that today the majority of those becoming infected with the virus are unvaccinated, this is not a concern solely for anti-vaxxers. It affects us all. Studies have shown that “breakthrough” infections (when people who are vaccinated contract the virus) are transmissible to others.
The threat of becoming ill with COVID-19 is frightening enough. We are seeing cases where the symptoms are enduring for months. Many Canadians despair of ever regaining the lives they lived before contracting COVID-19.
The condition of experiencing ongoing, or new, symptoms for weeks or months after contracting the virus is called post-acute COVID-19 syndrome, more commonly known as “Long COVID.” For those with Long COVID, known as “long-haulers,” the nightmare continues. They face uncertainty about their long-term health prospects and concomitant complications in their day-to-day life. According to the Ontario COVID-19 Science Advisory Table, roughly 10 per cent of those who become infected with the virus become long-haulers.
There are over 200 reported symptoms of Long COVID. Those most commonly reported include: cognitive dysfunction, often called “brain fog,” which includes memory and concentration problems, anxiety, dizziness, depression, fatigue, aches and pains, coughing and difficulty breathing, and heart palpitations.
A pan-Canadian survey of more than 1,000 long-haulers, carried out in May 2021, found cognitive impairment to be one of the most widely reported and enduring symptoms. Almost half of the respondents experienced symptoms for 11 months or longer.
This has a substantial impact on employment.
Many long-haulers, including those who contracted the virus in the first wave over 18 months ago remain unable to return to work in the same capacity as before they became ill.
An article published in the weekly peer-reviewed medical journal Lancet in July 2021 analyzed the responses of 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. At the close of the study, many remained unable to return to work in any capacity.
For these long-haulers, the stress of the uncertainty as to their long-term health prospects is likely compounded by the stress of financial uncertainty. Studies have shown that the physical and mental stress of returning to work before one feels able can cause a relapse, or onset of new symptoms. Likely meaning more time off work. This is where disability benefits can offer relief, allowing long-haulers the crucial time and financial security to concentrate on getting better. When short-term disability benefits run out, long-haulers who are covered by their employer’s group insurance plan should apply for long-term disability benefits.
While insurance policies vary, generally speaking, LTD benefits replace 60-70 per cent of salary and can continue up to age 65.
Insurance companies look for any way they can to deny or cut short a claim: that is how they make money. In the case of COVID-related disability claims, insurers are frequently denying claims due to insufficient medical evidence, for example, the lack of a positive COVID-19 test.
Many long-haulers lack a positive test to produce as evidence. Tests were not widely available in the early days of the pandemic. Some who caught the virus from a member of their household who received a positive test often weren’t given tests themselves, as it was simply assumed they had it as well. Some were asymptomatic and didn’t even realize they had the virus. Although long COVID is a newly recognized syndrome without a universally agreed definition or defined group of symptoms, these are not legitimate reasons to deny or cut short an LTD claim.
Additionally, because many of the symptoms such as fatigue, brain fog, and depression are “invisible” or subjective symptoms, it can be difficult for long-haulers to “prove” they are as sick as they truly are. Insurance companies take advantage of this. A disability lawyer will know how to meet and defeat the arguments insurers put forward in this regard.
As long as the symptoms experienced by a long-hauler meet the definition of disability, as set out in the policy, and there is medical evidence to support this, payouts should be guaranteed. After all, this is the reason employees pay premiums. Yet, in spite of this, insurance companies continue to deny Long COVID disability claims.
The definition of disabled varies from policy to policy. Generally, for the first two years, an employee must be unable to work in his or her own occupation. After this, and potentially up to age 65, an employee must be unable to work in any occupation.
This “own occupation” definition in the first two years means the inability to perform the essential tasks of the original job, or a similar job.
The “any occupation” definition thereafter does not literally mean any occupation. An architect does not need to show she or he is unable to wait tables, but rather that they are unable to perform the main tasks of any job that they are reasonably suited given their experience, education, training and other individual characteristics.
An experienced disability lawyer can decipher the nuances of an individual policy as well as gather the necessary medical evidence needed to make a successful challenge to a denial of or premature termination of LTD.
Employers should encourage high earning employees (if not all employees) to obtain independent legal advice on their contracts as it offers added protection to both.
Long COVID’s reach and effects should not be underestimated. The growing recognition of the syndrome and the establishment of post-COVID recovery clinics have increasing numbers of long-haulers coming forward. The number of Canadians currently suffering from long COVID is estimated at 150,000. That is a conservative estimate. In Ontario alone, there are between 57,000 and 78,000 people enduring lingering symptoms.
With research into Long COVID still in its infancy, long-haulers have more questions than answers when it comes to their long-term health prospects. With no guarantee of light at the end of the tunnel, LTD benefits remove financial uncertainty from the equation, giving those afflicted some much needed time and peace of mind to focus on recovery.
Got a question about employment law during COVID-19? Write to Howard at levitt@levittllp.com.
Howard Levitt is senior partner of Levitt Sheikh, employment and labour lawyers with offices in Toronto and Hamilton. He practices employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada. Rob Lilly is with Levitt Sheikh.