We can expect to see more COVID long-haulers in court soon

By Paul Russell, LegalMatters Staff • Canadian courts will be dealing with a surge of COVID-related litigation for years to come, says Toronto personal injury lawyer Joshua Goldberg, starting with challenges to rules around masking and vaccinations.

“There are already human rights arguments being made regarding mandatory masking and vaccination requirements,” he says. “I have had several people call me about COVID-related employment issues. I’m sure there are other areas related to this virus where we have not even broken the surface.

“There will be many more issues that arise because of the pandemic,” says Goldberg, principal of Joshua Goldberg Law.

As an example, he points to COVID long-haulers, the term used to describe those who have mostly recovered from the virus but are left with lingering symptoms that may never go away

According to the British Medical Journal, researchers have found that about 10 per cent of those who tested positive for the coronavirus continued to suffer its effects for months after. Symptoms can vary widely and include low-grade fever, cough and fatigue, loss of sense of smell and taste, depression, anxiety and dizziness.

As many as 150,000 Canadians may have lingering COVID issues

As of Aug. 24, the federal government reports there were 1,473,624 total cases of COVID-19 in Canada. At 10 per cent of cases, that means there could be close to 150,000 Canadians struggling with the effects of the virus for years to come.

“Some people with a long-haul condition may be able to work for the time being, but their condition may get worse,” Goldberg tells LegalMattersCanada.ca. “At some point they may be unable to earn an income. People in that situation need to know that the time period for making a long-term disability (LTD) claim likely starts on the day they filed an application, not when they were first diagnosed with the virus.”

He says one of the problems long-haulers have with making a claim is that their disability is relatively new and there is no precise medical definition of “long COVID.” Goldberg adds that researchers have predicted the global pandemic will leave millions of coronavirus survivors chronically ill, creating what an article in Scientific American recently dubbed a “tsunami of disability.”

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“People suffering from long-COVID need to keep in mind that a diagnosis of a specific illness is not necessarily required to be eligible for LTD,” he says. “All you likely need is a medical condition that disables you from doing your job, unless the policy says otherwise.”

Goldberg urges anyone in that position to seek the services of a personal injury lawyer.

“One of the things I deal with in my practice is ensuring insurance companies treat people fairly,” he says. “We see numerous instances where insurance firms refuse to approve LTD applications, or they try to terminate them early. That is just not right.”

Famlly physician needs to be on your side

If a client is planning on filing an LTD claim, Goldberg advises them to enlist the support of their family physician.

“It’s important to coordinate with your doctor, and make sure they are supportive of your claim,” he says. “In my experience some general practitioners are not very supportive in these situations.”

Goldberg gives the example of a family doctor who fails to support a patient’s claim for rehabilitation therapy after a car accident.

“I’ve had clients in that situation who tell me their GP ‘does not want to get involved in a lawsuit’,” he says. “With long-haul COVID, you really need to find a doctor who can attest that you are unable to work due to lingering symptoms caused by the virus.”

Goldberg also recommends that clients insist that any communication with the insurance adjuster handling their LTD claim be done in writing.

“The formal decision about whether the claim is accepted or not will be in writing, but that is not enough,” he says. “We want to have a written record of everything the adjustor stated or asked, so we can rely on that information if we need to launch a challenge if the LTD coverage is denied.”

Long-term disability denial can be fought 

“I always tell clients that just because you were denied that is not the end of the story. Fighting that denial is what I am here for,” he says. “If you are in that situation, get yourself a lawyer who who knows how to fight LTD insurers.”

Goldberg cautions people not to wait to enlist legal counsel. There is generally speaking a two-year limitation period on when court challenges can be launched.

Changing weather patterns pose another challenge for those dealing with COVID-related health issues, he says.

“Environmental issues will have a huge impact on them,” Goldberg says, noting that “long-haulers living close to the wildfires plaguing western Canada must be struggling. The smoke in the air is very hard on people with lung issues.”

He speaks from experience, reflecting on the years he lived in Beijing.

“Beijing is a very polluted city,” Goldberg says. “If I was a long-hauler, I would not want to live there. Sometimes the pollution gets so bad that authorities tell people to limit their activities outside of their homes.”