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Long COVID and Disability

By Barbara B. Comerford, Esq.

And Carlissa L. Prettyman, Esq.

Our law firm receives many calls from individuals who have either been diagnosed in the past with COVID-19 by PCR or other testing, or who believe they suffered from COVID-19 based on the symptoms they experienced within the last year, some in the early months of the pandemic, when testing was very limited. Often these people are frightened because symptoms they thought would go away within weeks continue to haunt them many months later. Some struggle to even work remotely because very little physical and/or mental exertion frequently results in significant worsening of symptoms. And many others live in fear of being required to return to work in brick-and-mortar offices as the likelihood of the pandemic lifting becomes more of a reality each day.  For these reasons, it is important for those with lingering COVID symptoms to equip themselves with information on what Long COVID is. And if the symptoms continue to persist, what their disability claim options are.

What is Long COVID?

The definition of Long COVID 19 continues to evolve. Essentially, it encompasses individuals who suffer COVID 19 multi system symptoms weeks or months after experiencing the virus.[1] Roughly one third of COVID 19 patients who are not hospitalized have long-term illness.

The CDC is currently developing guidelines for medical practitioners who treat Long COVID patients. And recently the CDC issued the following statement:

“For some people, the effects of COVID-19 can last well beyond the immediate illness. Patients and clinicians across the United States are reporting long-term effects of COVID-19, commonly referred to as long COVID. Symptoms may include cognitive difficulties, fatigue, and shortness of breath. In some patients, critical illness from COVID-19 may be the cause of persistent symptoms, but many patients with long-term effects had mild or asymptomatic acute COVID-19 infection.” [2]

The common symptoms of Long COVID-19 are extensive: fatigue, cognitive dysfunction (brain fog) cough, joint pain, muscle aches, headaches, fever, shortness of breath and good day/bad day presentation of symptoms, all of which are frequently seen in myalgic encephalomyelitis/Chronic fatigue syndrome (ME/CFS).  Another issue for many with Long COVID, and ME/CFS, is post-exertional malaise where individuals suffer physical and cognitive setbacks after performing activities that require only minor exertion. And Long Covid patients like ME/CFS patients, may suffer autonomic dysfunction which can cause heart palpitations, dizziness, shortness of breath and other complaints.[3]

A study conducted by Indiana University School of Medicine, in conjunction Survivor Corp (Long COVID patient group) prepared a list of Long COVID symptoms[4] set forth here:

Long COVID Symptoms from most common reported to least

  • Fatigue
  • Muscle or body aches
  • Difficulty concentrating or remembering
  • Inability to exercise or be active
  • Headache
  • Difficulty sleeping
  • Anxiety
  • Memory problems
  • Dizziness
  • Persistent Chest Pain or Pressure
  • Cough
  • Joint Pain
  • Heart Palpitations
  • Diarrhea
  • Sore throat
  • Night sweats
  • Partial or complete loss of sense of smell
  • Tachycardia (abnormally rapid heart rate)
  • Fever or chills
  • Hair loss
  • Blurry vision
  • Congested or runny nose
  • Sadness
  • Neuropathy in feet and hands
  • Reflux or heartburn
  • Changing symptoms
  • Partial or complete loss of sense of taste
  • Phlegm in the back of the throat
  • Abdominal Pain
  • Lower back pain
  • Shortness of breath or exhaustion from bending over
  • Nausea or vomiting
  • Weight gain
  • Clogged ears
  • Dry Eyes
  • Calf cramps
  • Tremors or shakiness
  • Sleeping more than normal
  • Upper back pain
  • Floaters or flashes of light in vision
  • Rash
  • Constant thirst
  • Nerve sensations
  • Tinnitus or humming in the ears
  • Changed sense of taste
  • Sharp or sudden chest pain
  • Confusion
  • Muscle twitching
  • Feeling irritable
  • Weight loss
  • Post-nasal drip
  • Dry throat
  • High blood pressure
  • Dry or peeling skin
  • Swollen hands/feet
  • Heat intolerance
  • Mouth sores or sore tongue (or Covid tongue-furry sensation on tongue or pain)
  • Chills without fever
  • Hot blood rush
  • Phantom smells
  • Bone aches in extremities
  • Feeling of burning skin
  • Extreme pressure at the base of the head or occipital nerve
  • Swollen lymph nodes
  • Brain pressure
  • Kidney pain
  • Spikes in blood pressure (could be related to Autonomic nervous system issues)
  • Hand or wrist pain
  • Costochondritis (see below under painful LHC symptoms)
  • Bulging veins
  • Abnormally low temperature (can be related to autonomic nervous system issues)
  • Mid-back pain at base of ribs
  • Burning sensations
  • Jaw pain
  • Painful scalp
  • Arrhythmia (Heart rhythm problems occur when the electrical impulses that coordinate your heartbeats don’t work properly, causing your heart to beat too fast, too slow or irregularly. Heart arrhythmias may feel like a fluttering or racing heart and may be harmless. However, some heart arrhythmias may cause bothersome — sometimes even life-threatening problems(https://www.mayoclinic.org/diseases-conditions/heart-arrhythmia/symptoms-causes/syc-20350668)
  • Low blood oxygen
  • Cold burning feelings in the lungs
  • Cracked or dry lips
  • Goiter or lump in throat
  • Foot pain
  • Eye stye or infection
  • Covid toes: The swelling and discoloration can begin on one or several toes or fingers, according to Amy Paller, MD, FAAD, who is a board-certified pediatric dermatologist and Chair of Dermatology at Northwestern Feinberg School of Medicine. At first, you might see a bright red color that gradually turns to purple. COVID toes can also begin with a purplish color.

https://www.aad.org/public/diseases/coronavirus/covid-toes

  • Low blood pressure
  • Dry scalp/dandruff
  • Kidney issues or protein in the urine
  • UTI
  • Hormone imbalance
  • Thrush (a fungal infection caused by several types of candida (a type of yeast)). Thrush is known to affect nearly all parts of the digestive system and the skin, and when it appears in the mouth, this condition characterizes itself as white patches on the tongue or the walls of the mouth. Other symptoms are trouble swallowing, burning and soreness in the mouth, cotton feeling in the patient’s mouth, loss of taste, and cracked skin at the corners of the mouth. (https://healthprep.com/mouth-teeth/symptoms-of-thrush/?utm_source=bing&utm_medium=search&utm_campaign=370437812&utm_content=1261140519410481&utm_term=thrush)
  • GERD (with excessive salivation )Difficulty swallowing, heartburn, regurgitation, and other symptoms of GERD are not only uncomfortable, they may signify a more serious condition.Without intervention, 26.5% of chronic GERD patients may develop a precancerous condition called Barrett’s esophagus.

(https://www.medtronic.com/us-en/c/digestive-gastrointestinal/reflux-risks.html?cmpid=PPC_BING_GERD_HL1_DntIgnore_ChrncRef_HL2_Determine_ifUhaveGERD_HL3_CouldProg2Cancer_D1_Chrnc_Hrtburn_AcidReg_mayIndicateGERD_disease_learnIfUatRsk_D2_TalkwithDoc_about_MngingRef_reducingRskofProg_ContactGI_GIH_FY19&ef_id=b9147886c46f180e1a771899d11beb2b:G:s&s_kwcid=AL!5660!10!82944643471827!82944627622769)

  • Drastic Personality Change
  • Herpes, EBV (Epstein Barr Virus), or Trigeminal neuralgia (Mayo Clinic definition of trigeminal neuralgia: Trigeminal neuralgia is a chronic pain condition that affects the trigeminal nerve, which carries sensation from your face to your brain. If you have trigeminal neuralgia, even mild stimulation of your face — such as from brushing your teeth or putting on makeup — may trigger a jolt of excruciating pain.)

www.mayoclinic.org/diseases-conditions/trigeminal-neuralgia/basics/definition/con-20043802

  • Drastic Personality Change
  • Herpes, EBV (Epstein Barr Virus)

Some of these symptoms are more disabling than others so review the above, preferably with an observant friend or family member, who may have more insight into your symptoms.

  • Recent Study published in the Journal Nature-Largest study yet to review the array of long term complications of COVID-19

(See https://news.yahoo.com/patients-long-covid-face-lingering-185649476.html)

Long Term Health Effects of COVID-19

  • Researchers looked at the medical records of more than 73,000 people across the US whose COVID infections did NOT require hospitalization (researchers reviewed documents of patients from the Department of Veteran Affairs Health System) who tested positive with COVID 19 from March through November 2020
  • Between 1 and 6 months after infection, these patients had a significantly greater risk of death, more than 60% than those not infected by the COVID-19 virus
  • The study also found that non-hospitalized COVID survivors had a 20% greater chance of needing outpatient medical care over those six months than people who had not contracted COVID 19.
  • This study, while extensive, may not be representative of Long COVID general population because the average age of study participants was over 60.

SSA Standard of DIsability in Long COVID cases:

SSA issued an emergency message on 4/16/21 regarding how they will evaluate COVID-19 disability clams.

EM 21032 – Evaluating Cases with Coronavirus Disease 2019 (COVID-19) – 04/16/2021 emphasizing the following:

  • Coronavirus Disease 2019 (COVID-19) is an infectious disease. COVID-19 symptoms can range from no symptoms to severe illness. While COVID-19 is primarily a respiratory disease, emerging data suggests that it may also lead to cardiovascular, renal, dermatologic, neurological, psychiatric, or other complications.

Each SSD/SSI case follows the same 5 step Sequential Evaluation process to evaluate disability. The SSA “Emergency Message” prepared in April 2021 for Long COVID disability cases provides an analysis of how those cases should be evaluated under the 5 step Sequential Evaluation Process:

Step 1:

The Durational Requirement– The period of time during which a person is continuously unable to engage in substantial gainful activity (SGA) due to their impairment. The impairment must last or be expected to last for a continuous period of 12 months or is expected to end in death. It is often challenging for individuals suffering from Long COVID to meet the durational requirement, but a client may meet the durational requirement if there are severe long-term effects due COVID-19, one or more new medically determinable impairments (MDIs) caused by COVID-19, or existing MDI(s) have worsened because of COVID-19.

Step 2: Severity– The medical evidence must establish a physical or mental impairment or combination of impairments of sufficient severity as to be the basis of a finding of an inability to engage in any substantially gainful activity.  SSA-POMS: DI-24505.001

  • Establishing a medically determinable impairment (MDI)-objective medical evidence from an acceptable medical source (AMS) is needed to establish the existence of an MDI for COVID-19, including long-term effects of COVID-19, which means signs, laboratory findings, or both. To establish an MDI evidence from an AMS indicates:
  • A report of a positive viral test for SARS-CoV-2,
    · A diagnostic test with findings consistent with COVID-19 (e.g., chest x-ray with lung abnormalities,         etc.), or
    · A diagnosis of COVID-19 with signs consistent with COVID-19 (e.g., fever, cough, etc.).
  • Residual Functional Capacity (RFC) to perform PAST work- (Basically this means what functional abilities remain after Long COVID symptoms) If your impairments do not meet or equal a listed impairment (which is not uncommon), an assessment of RFC must be made, and adjudication must proceed to the 4th and 5th steps of the sequential evaluation process. RFC is the most a client can do despite functional limitations resulting from their impairments. Due to the duration requirement, any limitations that resolve within 12 months are not included in the RFC assessment. All functional limitations arising out of any new impairments caused by COVID-19, or any impairments that have worsened because of COVID-19 in the RFC. When assessing the RFC, evaluate both stamina and endurance based on individual case facts. (Eg: George is unable to perform his past work as a construction worker, as it required frequent standing, lifting, working around hazards and pulmonary irritants, which he is no longer able to do since Long COVID has exacerbated his COPD which causes him to experience frequent episodes of shortness of breath, chest pain, cough, and fatigue even without exertion, that has worsened since contracting COVID.)
    • Restrictions intended to limit exposure to COVID are NOT considered in the RFC. (Ex: Sarah has to telework since her age and auto-immune issues put her at high medical risk.)
  • Residual Functional Capacity to perform ANY work- The final step is to determine whether the client can perform any work in the national economy. (Eg: George is unable to perform any work in the national economy, because his COVID exacerbated COPD causes him to be unable to stand, walk, lift and carry, and sustain throughout a work-day due to his fatigue, chronic shortness of breath, wheezing, and chest pain.)

ERISA Disability Insurance Claims

  • ERISA is an acronym for the Employee Retirement Income Security Act of 1974, 29 U.S.C. §1001, et seq. ERISA governs the administration of employee benefit plans and the rights of beneficiaries under those plans.
  • ERISA covers retirement plans and welfare benefit plans. In FY 2013 (last reported) ERISA encompassed roughly 684,000 retirement plans, 2.4 million health plans and 2.4 million additional welfare benefit plans. These plans cover about 141 million workers and beneficiaries, and include more than $7.6 trillion in assets. About 54 percent of America’s workers earn retirement benefits on the job, and 59 percent earn health benefits. ERISA LTD benefits are part of Welfare Benefit Plans NOT VESTED PENSION BENEFITS.
  • ERISA is administered and enforced by three bodies: the Labor Department’s Employee Benefits Security Administration, the Treasury Department’s Internal Revenue Service, and the Pension Benefit Guaranty Corporation.
  • The Department of Labor regulations governing ERISA are codified in the Code of Federal Regulations: (See the Electronic CFR at: https://www.ecfr.gov/cgi-bin/text )-idx?SID=cd048e22cb98963d7271b48d21cfb403&mc=true&tpl=/ecfrbrowse/Title29/29chapterXXV.tpl)

Plans exempt from ERISA:

  • Federal, state, or local government plans, including plans of certain international organizations
  • Certain church or church association plans

Additional Plans exempt from ERISA:

  • state workers’ compensation
  • unemployment compensation
  • state disability insurance laws
  • Plans maintained outside the United States primarily for non-resident aliens
  • Unfunded excess benefit plans – plans maintained solely to provide benefits or contributions in excess of those allowable for tax-qualified plans

Common Provisions of ERISA LTD Plans

  • Elimination Period (commonly 90 days to 180 days)
  • Duration: to age 65 or FRA under SS regulations
  • 40% to 70%- of pre-disability monthly income (defined in the policy/plan; bonuses, commissions, overtime may not be included as pre-disability income)
  • Limitations-Mental Nervous and other enumerated disabilities under the plan/policy may limit duration of payments (eg-self-reported illnesses)
  • Exclusions- (eg- felonies, self-inflicted injuries)

Additional Common Provisions of ERISA LTD Plans/Policies:

  • Other Income benefits offset

—Look to the policy language for what “other income benefits” are offset under the Plan

(eg-SSD award, worker’s compensation award; pension distribution; wage loss under Personal Injury Awards*(discuss with PI attorney before PI settlement is made)

  • New York State law exempts personal injury awards from offset in this context- (See N.Y. Gen. Oblig. Law Sec. 5-335(a)): and See: Arnone v. Aetna Life Ins. Co., 860 F.3d 97) 2d Cir. 2017) The plaintiff received $850,000.00 in a personal injury settlement and Aetna, Arnone’s ERISA LTD carrier, then offset his monthly LTD benefits under the policy other income provision. The 2nd Circuit held that Section 5-335 barred Aetna’s offset. (Aetna then filed a petition for a writ of certiorari but SCOTUS denied the petition in December 2017) 

Tips in Long Haul COVID claims:

(First, very important tip: hire an attorney experienced in ERISA LTD cases)

  • Thoroughly Review Plan Documents, and Policies- Review it all because provisions can appear in odd places, and in more than one place within the documents provided
  • Thoroughly document Long Haul COVID-19 (LHC) symptoms (Go through the Symptoms set forth above) Document symptoms from any other medical conditions that affect your ability to work. ALL must be considered
  • Vocational Assessment (Eg-Job Description (provide details BEYOND the job description or resume); Pre LHC Job Evaluation; Post LHC Job Evaluation; Remote work: is it possible for the claimant to work remotely-if not, why not) If LHC limitations do not permit the claimant to work remotely-Explain IN DETAIL why not? (Eg Fatigue too debilitating, cognition deficits too great, autonomic symptoms too extreme (dizziness/lightheadedness etc)
  • Has a vocational assessment been done by a vocational rehabilitation expert?
  • List as many functional limitations as possible (Functional limitations are the most important part of all disability claims. And LHC disability claims are no different)
  • Emphasize those limitations that directly affect your ability to perform the duties of your own occupation or any occupation
  • Objectively document as many functional limitations as possible.
  • Establish permanence of the limitations which can be challenging in LHC cases
  • Permanence may be an issue: establish onset date from when the symptoms/limitations began
  • Have the symptoms come and gone? If so what is the pattern in your case? (Eg-did you assume recovery after the Covid diagnosis only to get symptoms thereafter? Did you attempt to return to work only to fail because of your symptoms? Did your symptoms continue from day 1? Do you suffer good day/bad day constellation of symptoms? How exactly do the symptoms/limitations present in your case-Document.
  • You should always journal symptoms indicating what the presentation of symptoms and limitations are for each day
  • Make sure you are not treating with a “gaslighting” physician. You should seek help with a specialist who understands the illness (eg- ME/CFS specialist, Infectious Disease Specialist, or LHC Clinicians etc..)
  • If you are experiencing cognitive deficits, seek out a neuropsychologist familiar with Long Covid cognitive deficits.
  • Order medical records immediately and ongoing. Obtain Narrative report from treating doctors and provide the medical evidence to the Insurance Company as it is received
  • Filing of ERISA LHC LTD claim:
  • Timely Proof of Loss (Determine by reviewing the Plan/policy)-
  • Complete Proof of Loss
  • Create an Addendum – tell your story- IN LHC context-The difference between pre-morbid health and post COVID-19 health.
  • Identify The Duration of illness. How long have you been ill from LHC symptoms? Did you test positive for COVID-19? If so, when. If not, when did the LHC symptoms start?
  • Identify the symptoms, and objectively document as many as possible.
  • Include all objective test results: (Dr. Fauci says LHC often presents like ME/CFS)
  • neuropsychological testing (which can be done remotely);
  • Cardio-pulmonary exercise testing-(which must be done in-person to document fatigue, post-exertional malaise. It is the only non-invasive exercise stress test that assesses heart and lung function in real-time during exercise. Your heart and lungs work together to deliver oxygen to your working muscles where it is used to make energy; and to remove carbon dioxide from the body.(https://www.mymettest.com/what-is-cpet);
  • autonomic nervous system issues: When things go wrong with that system, orthostatic intolerance occurs and many different kinds exist. Postural orthostatic tachycardia syndrome (POTS) and its subsets (post-viral POTS, hyperadrenergic POTS, neuropathic POTS, hypo/hyperkinetic, exercise-induced POTS) appear to be the most common form of OI. Other forms of OI (orthostatic hypotension (OH), neurally mediated hypotension (neurogenic orthostatic hypotension)autonomic nervous system is the part of your nervous system that controls involuntary actions, such as the beating of your heart and the widening or narrowing of your blood vessels. When something goes wrong in this system, it can cause serious problems, including Blood pressure problems; Heart problems; Trouble with breathing and swallowing, etc..) OBJECTIVE tests: NASA Lean Test; tilt table testing
  • Additional information may be requested by the LTD carrier: Always ask:
  • Is it relevant to the claim or being sought for purpose of delay?
  • e. pre-existing condition review). (NOTE: Under NYS law, No pre-existing condition provision shall exclude coverage for a period in excess of twelve months following the enrollment date for the covered person and may only relate to a condition (whether physical or mental), regardless of the cause of the condition for which medical advice, diagnosis, care or treatment was recommended or received within the six month period ending on the enrollment date. For purposes of this section “enrollment date” means the first day of coverage of the individual under the contract or, if earlier, the first day of the waiting period that must pass with respect to an individual before the individual is eligible to be covered for benefits.  (See https://newyork.public.law/laws/n.y._insurance_law_section_4318)
  • Request the claim file from the LTD carrier (In ERISA cases, must provide within 30 days or suffer penalties of $110. per day)
  • Review and Organize the claim file upon receipt
  • Selective review?
  • Did the carrier disregard substantial medical evidence?
  • Did the reviewing physicians take the treating physician’s findings and conclusions into account? Proper expertise?
  • Did you actually improve? Or is it good day/bad day; Cherry Picking by the LTD carrier
  • Can you actually perform the occupation at issue? If not, why not?
  • Did the LTD carrier give due regard to SSA award? (The plan/policy often requires the claimant to file for SSD so either file an SSD case or refer the client to an experienced SSD lawyer)
  • Did the claim file document-
  • Use of surveillance?
  • Changing rationale?
  • Reviewer qualifications
  • IME examiner qualifications
  • Appeals of adverse benefit determinations are governed by ERISA Section 503 and 29 C.F.R. § 2560.503-1 (h):
  • Plans must provide at least 180 days for the claimant to appeal and adverse benefit determination.
  • Adverse benefit determination need not be a decision of “not disabled”
  • Mental/nervous, subjective reporting or other benefit limitations
  • Benefit calculations
  • “Other income” offsets.
  • Obtain responses from Treating docs to reviewing physicians
  • Obtain updated or missing medical records and narrative reports
  • Obtain certifications from loved ones, co-workers etc..,.
  • You should be evaluated by qualified physicians including specialists in the particular disabling illness
  • Appeal must include all factual and legal arguments available that you wish to make. All medical/vocational evidence must be provided (Many plans only allow one level of appeal so you must get your factual and legal bases in that one appeal for a Judge to consider it if litigation is necessary)
  • Appeal must be submitted timely – EXHAUSTION OF ADMINISTRATIVE REMEDIES or failure to do so may result in SOL issue
  • Disclosure requirements by the plan upon an adverse benefit determination:
  • Benefit denial notices must contain a complete discussion of why the plan denied the claim and the standards applied in reaching the decision.
  • Generally must be in writing.
  • Must provide notice that claimant may access all documents free of charge submitted, considered or generated in the process of evaluating the claim, regardless of whether the carrier relied upon such documentation. Must be provided within 30 days of the claimant’s written request
  • Claimants must be given timely notice of their right to access their entire claim file and other relevant documents and,
  • be guaranteed the right to present evidence in support of their claim during the review process.
  • Claimants must be given notice and a fair opportunity to respond before denials at the appeals stage are based on new or additional evidence or rationales. See the Department of Labor’s (DOL) amended disability claims procedure regulations, which became effective on April 1, 2018. They require disclosure during the appeal of an adverse benefit determination. 29 C.F.R. § 2560.503-1. (See Hughes v. Hartford Life & Accident Ins. Co., 368 F. Supp. 3d 386, 402 (D. Conn. 2019; and See Salomaa v. Honda Long Term Disability Plan, 642 F.3d 666, 679-680 (9th Cir. 2011), where the court held that “by denying Salomaa the disclosure” and “access to the two medical reports of its own physicians upon which it relied … the plan denied him the statutory obligation of a fair review procedure.”
  • Confidential documents arguments limited. See Aitken v. Aetna Life Ins. Co ., No 16CIV4606PGGiCF, 2017 WL 2558795, at *2(S.D,N.Y June 2, 2017):
  • 29 C.F.R. (§) 2560.503-1(h) (4) (ii): Claimant gets the last word on appeal

Federal Register: If claimant’s response leads to generation of an additional report, this must also be furnished asap to allow claimant to respond to “new or additional evidence in the third report.”

  • Experts retained by the Plans
  • A plan that requires a physical or other examination of the claimant to evaluate a claim must design a process that provides for decision making within the time frames of the regulation.
  • NOTE: In the case of an adverse determination, if the claimant requests the name(s) of the expert(s), they must get it and not simply the company they work for.
  • The ONLY limits on extensions of time established under the regulations are imposed on Plans
  • Claimants may voluntarily agree to provide a plan additional time within which to make a decision on a claim even where the Plan could not unilaterally do so

For any other questions you may have, please call our office and speak to one of our attorneys who are here to help.

The Law Offices of Barbara B. Comerford

[1] https://www.healthline.com/health-news/covid-19-long-haul-symptoms-may-be-caused-by-changes-in-genes#A-virus-that-works-quickly

[2] https://emergency.cdc.gov/coca/calls/2021/callinfo_012821.asp?ACSTrackingID=USCDC_1052-DM45830&ACSTrackingLabel=CDC%20COCA%20Call%3A%20Treating%20Long%20COVID%3A%20Clinician%20Experience%20with%20Post-Acute%20COVID-19%20Care&deliveryName=USCDC_1052-DM45830

[3] https://www.healthline.com/health/autonomic-dysfunction#TOC_TITLE_HDR_1: “The autonomic nervous system (ANS) controls several basic functions, including:

[4] Lambert, N. J. & Survivor Corps. COVID-19 “Long Hauler” Symptoms Survey Report. Indiana University School of Medicine; 2020.

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