Long-hauler insurance claims could be the next COVID battleground

By Tony Poland, LegalMatters Staff • As vaccines slowly return some normalcy to a world living under the cloud of coronavirus, long COVID threatens to be the next healthcare crisis and it could have a profound effect on long-term disability claims, says Barrie-area litigator Steve Rastin.

“Long COVID could very well be the fibromyalgia of the next decade,” says Rastin, senior counsel at Rastin Gluckstein. “We are starting to see instances where people, who have been trying to get benefits for several months, are seeking legal advice because their insurance companies refuse to look at their claims. I anticipate that this is going to be a massive battleground as people fight for their rights.

“Many have been functioning on the assumption that if COVID-19 doesn’t kill you, you will eventually get better but that’s not always the case,” he tells LegalMattersCanada.ca. “There’s a tendency to view COVID as a bad flu. It’s not. It’s a different disease with a different mechanism.”

After more than a year of dealing with the COVID crisis there is growing evidence of the after-effects still suffered by so-called “long-haulers,” Rastin says.

People suffering months after positive test

Researchers at the British Medical Journal found that about 10 per cent of those who tested positive for the coronavirus continue to suffer months later. They state post-acute COVID-19 symptoms vary widely and even a mild case may be associated with long-term symptoms, such as low-grade fever, cough and fatigue. 

“Other reported symptoms include shortness of breath, chest pain, headaches, neurocognitive difficulties, muscle pains and weakness, gastrointestinal upset, rashes, metabolic disruption (such as poor control of diabetes), thromboembolic conditions, and depression and other mental health conditions,” according to the Journal.

Rastin says about 1.4 million Canadians have tested positive for COVID, which means if researchers are correct, there may be 140,000 long-haulers still suffering the disease.

He points out that number could be much higher since it only includes people who have tested positive for the virus. Many others may have caught a mild case of COVID but were not tested. And even though they may have seemingly recovered, there could still be lingering long-term effects.

“What’s even more frightening is there are others who are dragging themselves through their life and they are suffering. But because this cluster of symptoms is so ill-defined, they don’t actually realize that they are long-haulers,” Rastin says. 

He says it is possible more long COVID cases will come to light when people return to the job from a remote workplace environment.

“Many people are still telecommuting so it will be interesting to see what happens when people go back to the active workforce with commuting and all the stresses associated with an office,” Rastin says. “If you’re functioning at less than maximum efficiency while working from home every day, it might take longer for some of these deficiencies to become evident.”

Three categories of COVID patients

He says there are basically three categories of COVID: people who are asymptomatic, those who have had minor symptoms and those who are hospitalized. From anecdotal evidence it appears that many long-haulers may be young and in previous good health, says Rastin.

He says science has learned much about the virus but many questions remain.

“COVID can attack your respiratory system, your brain and it can attack your heart. For some, it does permanent damage,” Rastin says. “It could actually do permanent damage but some might not even realize it.” 

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He says some people who have been dealing with health issues due to the coronavirus have been able to rely on emergency government funding.

“But what’s happening now is that things such as Employment Insurance have run out and people are hitting the long term disability (LTD) wall,” Rastin says. “Most LTD policies have a four- to six-month waiting period before they kick in. We are now starting to see more cases where claims are being denied.” 

He says he can “understand why long-term disability companies are worried.”

“If you have this potential pool of 140,000 people who might be disabled in a year, that’s a significant financial risk for them,” he says. “You can bet in the boardrooms the insurers are realizing that this is a severe threat. It is going to be a big fight.”

Insurance companies expect a claimant to document the history of their claim, says Rastin, and that is one of the problems with the virus. An insurer will ask for a positive COVID test but not everyone who caught the virus actually got one.

He says insurers also demand medical paperwork to back up a claim.

Establishing good paper trail is important

“One of the things you can use to establish your case is a good paper trail with your family physician,” Rastin says. “But many family physicians haven’t seen patients in a year and a half. You may have long COVID, but you haven’t seen your doctor during the lockdown and the insurance company will use that against you if you haven’t documented it.”

Another hurdle is a lack of a clinical definition for long COVID, he says.

“The underlying problem is that many of these symptoms do not show up on diagnostic testing.

There is no test to find something abnormal,” Rastin explains. “Doctors haven’t gotten together to come up with a clinical definition for long COVID. It really hasn’t gotten the attention that it deserves.

“It’s understandable. The medical community has been too overwhelmed dealing with the immediate issues of the pandemic to turn its mind to this new crisis that we’re going to be facing,” he adds. “We need to get a clinical definition of long COVID, and we need to educate the medical community so that they actually start making a diagnosis.”

Insurance companies have a responsibility to long-haulers

Rastin says insurance companies have a responsibility to the long-haulers they insure.

“You buy insurance to save yourself from exactly this type of stress,” he says. “You have been paying into this policy religiously so that you have the peace of mind knowing that your family is not going to be financially ruined if the worst happens. Then the worst happens and the insurance company say, ‘Prove it.’”

Rastin expects many bumps down the road as the long COVID issue unfolds.

“It is still too early in the process. In five or 10 years, there may be studies that reveal more but right now, all we know is there are many people who are suffering,” he says. “It’s fair to say that this is new enough that lawyers are feeling their way too. 

“However, the problem is too big to be dismissed on the basis that there is insufficient medical evidence to support a claim,” Rastin adds. “It is essential that people facing this reach out to a lawyer who has experience representing people with disability claims. Someone with the skills to deal with chronic pain cases and invisible disabilities.”

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