COVID-19 is sure to spark long-term disability claim disputes

By Paul Russell, LegalMatters Staff • As COVID-19 continues to disrupt workplaces with countless people forced to call in sick due to the Omicron variant, Toronto personal injury lawyer Joshua Goldberg foresees a looming legal battle shaping up with insurers over long-term disability (LTD) payments.

“Studies show that at least 10 per cent of people affected by COVID will have lingering symptoms for months and years after their recovery, with at least one report putting the number at 50 per cent,” says Goldberg, principal of Joshua Goldberg Law.

“People with ‘long-COVID’ will be physically unable to return to their places of employment, so they will have no choice but to file claims for long-term disability,” he says. “Ensuring that they receive the compensation they deserve will keep personal injury lawyers busy in the coming years.”

As of Jan. 10, the federal government reports there were 2,539,930 total cases of COVID-19 in Canada. At 10 per cent of cases, that means there could be at least 250,000 Canadians struggling with the effects of the virus for years to come.

Long-COVID difficult to define

Goldberg says one of the issues will be to define long-COVID as an ongoing illness. He notes there are now more than 600 global studies underway to examine long-COVID, which has been found to affect organs such as the brain, heart, lungs and blood vessels. 

According to information from the World Health Organization (WHO), the most frequently reported long-COVID symptoms include fatigue, shortness of breath, brain fog and muscle and joint pain. WHO states that “one recent study found that 30 per cent of COVID-19 patients surveyed still had persistent symptoms after nine months … the majority of patients surveyed (85 oer cent) were outpatients with mild illness.

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“People should be able to successfully claim LTD if they have a condition that prevents them from working, such as difficulty breathing,” says Goldberg. “It really doesn’t matter if it is caused by COVID or something else. The symptoms are serious enough that you should be eligible for LTD.”

Insurers reluctant to pay out claims

Securing that compensation will be a battle, he says, noting that insurers are reluctant to pay out claims to people suffering from chronic pain.

“Most insurance companies do not like dealing with chronic pain cases to begin with,” he says. “A large proportion of those are denied right off the bat, since it can be difficult to prove that someone is suffering from chronic pain or that they are unable to work because of that condition.

“Long-COVID could become the next Fibromyalgia,” he adds, referring to a disorder characterized by widespread musculoskeletal pain accompanied by fatigue, sleep, memory and mood issues.

“I expect we will have some protracted fights with insurers about LTD coverage in relation to long-COVID, until we can establish that so-called long-haulers have a legitimate illness and are unable to work.”

Medical records are invaluable

Goldberg advises anyone affected by COVID to collect medical records dealing with their diagnosis and treatment.

“If you have been hospitalized due to the virus, the chances of experiencing long-COVID increases. A lawyer can help you obtain the medical records you need to prove your case, in the months or even years that follow,” he says.

Goldberg says that with the spread of Omicron, many people are experiencing mild COVID-like symptoms that do not require a visit to a doctor or hospital. He says they will not have formal medical documentation to show they had the virus, especially now that Polymerase Chain Reaction (PCR) tests are not readily available

“I don’t think that getting a positive PCR test, or even a rapid test result, is necessary to claim LTD,” he says. “If you have the symptoms that prevent you from performing the normal duties of your occupation, that should be enough.”

Goldberg urges anyone experiencing long-COVID to contact a personal injury lawyer without delay, as there is generally a two-year limitation period on when court challenges can be launched.

“If you are denied sick benefits or LDT, that is not the end of the story. I have the experience to help you secure the compensation you are entitled to,” he says.