Insurance, News And Articles, Private Disability Insurance Claims

The COVID-19 pandemic upended every aspect of society. The disability insurance industry is no different. One of the biggest changes confronting the industry is the disability claims arising as a result of long-haul COVID symptoms.

While the majority of people who contract COVID-19 can resume working shortly after their symptoms subside, as many as 75% of patients who experienced moderate-to-severe COVID symptoms reported at least one long-term symptom. For some of those individuals, the symptoms associated with COVID can persist for months, if not over a year. Those with lingering symptoms have come to be known as “long-haulers,” (sometimes referred to as chronic COVID-19, post-COVID syndrome, and post-acute COVID syndrome). Researchers typically define a long-haul as experiencing symptoms beyond 12 weeks, but the symptoms may last many months.

If the symptoms, which can include breathing problems, deep fatigue, joint pain, muscle aches, and cognitive problems (often described as “brain fog,” slurred speech, difficulty walking, shortness of breath, headaches, and heart palpitations) are debilitating enough, they could keep the person from returning to their current occupation, or any occupation at all. If that happens, hopefully, the individual had the forethought to purchase an individual disability insurance policy or has a group disability insurance policy through their employer.

Disability Insurance Pays Benefits When an Insured Cannot Work
Disability insurance policies are designed to protect a person’s income if they are unable to work. They are offered by all of the major insurance companies, and can be purchased directly from an insurance agent or broker, but are often offered as a benefit of employment through a group plan paid for by an employer. Private disability insurance is different from state disability and Social Security Disability Insurance, which are paid by the government, with disputes “litigated” through an administrative law process.

To qualify for disability insurance benefits, the insured party needs to meet the policy’s definition of disability. Every policy is different, but typically, to qualify for benefits, the individual claiming their insurance needs to establish that, due to an injury or sickness, they are unable to perform the material and substantial duties of their occupation, or, in some cases, any occupation.

Because COVID-19 Long-Haul Claims Are So New, Insurance Companies Will Likely be Inclined to Deny the Claims
Unfortunately, because insurance companies make money by collecting premiums, not paying out benefits, it can be difficult to convince an insurance company to honor the terms of the policy and pay out the benefits that are owed. Given that insurers routinely fail to honor disability claims based on common and well-known diagnose that are generally supported by objective evidence such as degenerative disc disease, it is perhaps too much to expect them to properly evaluate and pay those who have diligently paid their premiums are now suffering from long-haul COVID symptoms.

Indeed, individuals trying to convince an insurance company to approve and pay their long-haul COVID claim(s) will face a variety of roadblocks.
First, there is no such thing as a “typical” long-haul patient. Usually, when claims handlers are presented with a claim, they can consult an internal “claims manual” that offers guidance as to typical symptoms, relevant specialists, and what medical records they should gather. For example, if someone claims they are disabled due to back pain, claims handlers commonly ask for copies of all relevant medical records, including, importantly, MRIs, X-Rays, and other imaging films and reports. The insurance company then provides those records to a board-certified orthopedist who offers an opinion regarding the claimant’s condition, restrictions, and limitations.

However, given the wide spectrum of long-haul COVID symptoms, not to mention the novelty of the diagnoses, the internal guidance offered to the insurance claims handlers for these types of claims is likely sparse, if at all existent. Without this guidance, claims handlers will more than likely default to denying these claims because they will be unable to justify the approval to their superiors. Their claims decisions, therefore, will likely be arbitrary and contrary to California law.

Another problem that will likely result in many denials is that doctors do not yet understand why some people who contract COVID experience long-haul COVID symptoms while others do not. Some physicians think that autoantibodies could play a part, with the immune system attacking the body as it does in rheumatoid arthritis. Other doctors postulate that viral reservoirs or lingering fragments of viral RNA or proteins contribute to the condition. Some doctors think that long-haul COVID may very well have multiple causes. The point is, doctors, do not yet know what causes long-haul COVID, which can be a problem for disability insurance claimants because disability insurance companies require rock-solid, undeniable proof of disability to pay a claim. If you give them even a tiny bit of doubt about the claim, they will seize the opportunity not to pay your claim.

Additionally, the fact that the average age of long-haul patients is 40 presents another hurdle in convincing insurance companies to properly pay a long-haul COVID claim. These patients should be in the most productive phases of their lives, but instead are unable to work. At this point, it is unclear how long post-COVID symptoms may last, so the insurance companies are facing the prospect of paying someone 20-30 years of disability benefits for a disease that did not exist two years ago. The insurance companies did not underwrite for that risk, and as a result, it is expected that they will be looking for any reason not to pay these claims.

Faced with these roadblocks, claimants and their attorneys will need to do a lot of educating. In doing so, it is important to remember that when presenting a disability claim, the diagnosis is not as important as the symptoms and limitations the insured experiences. Indeed, when discussing disability claims, insurance company employees (and their attorneys) have one phrase they love more than most: “diagnosis does not equal disability.” Thus, to qualify for benefits, and those seeking benefits will need to demonstrate how the symptoms of long-haul COVID prevent a return to work in one’s occupation or any occupation, as a diagnosis alone will be insufficient. Unfortunately, given how long-haul COVID presents, securing disability insurance benefits could prove difficult.

How to Convince the Insurer to Approve a Long-Haul COVID claim
As detailed above, long-haul COVID symptoms tend to be subjective. Subjective symptoms are felt by the one suffering from them but are not objectively verified by lab results or a physical exam. Traditionally, it has been difficult for claimants who suffer from subjective symptoms to convince insurance companies that they are disabled and entitled to benefits. Claims handlers generally understand that someone who is diagnosed with cancer will be unable to work while undergoing chemotherapy or that someone who is on dialysis may only be able to work part-time. However, when someone tells their insurance company that they are fatigued, have “brain fog,” or that lingering pain prevents them from returning to work, their claims tend to be questioned and often denied. There is no reason to believe that subjective symptoms indicative of long-haul COVID will be treated differently.

Additionally, because long-haul COVID is so new and there are not-yet-established medical protocols regarding diagnosis and treatment, it will likely be difficult for a claimant to support a claim, especially since the diagnosis is based on a constellation of symptoms that are not the same for everyone and most, if not all, are subjective.

Fortunately, while long-haul COVID is a novel disease, there is a growing body of medical literature detailing the disease, its presentation, and its most typical symptoms. With so much research focused on studying COVID and its aftereffects, it seems that every week there is new research, not only validating the disease, but discussing different ways to identify, diagnose, and treat long-haul COVID.

For example, the ICD-10-CM, the CDC’s international classification of diseases, was recently updated to add codes for COVID-related diagnoses and treatment, including,

• Encounter for screening for COVID-19 (Z11.52)
• Contact with and (suspected) exposure to COVID-19 (Z20.822)
• Personal history of COVID-19 (Z86.16)
• Multisystem inflammatory syndrome (MIS) (M35.81)
• Other specified systemic involvement of connective tissue (M35.89)
• Pneumonia due to coronavirus disease 2019 (J12.82)

While this is good news, remember, the insurance company will argue that “diagnosis does not equal disability.” The question is then, what is the best way to support a long-haul COVID claim.

Since the constellation of symptoms of COVID-19 long-haulers are unique to each person, a claimant or attorney needs to answer two questions to support a claim for benefits:

1. What symptoms are causing the disability, and
2. How can I prove to the insurance company that those symptoms are preventing a return to work?

Answering the first question is generally easy, as the claimant can work with their doctor to identify which symptoms are preventing a return to work. Answering the second question is harder.

One way to support a claim is to go beyond the diagnosis offered by a general practitioner and obtain medical records from a specialist in treating the specific symptom. For example, if the person complains of breathing problems, the claim submission should include records from a pulmonologist.
Since, as noted above, insurance companies often deny claims because of an alleged lack of objective evidence, another approach is to try to provide objective evidence of subjective symptoms.

For example, if the symptom is difficulty walking, that can be measured by physicians and physical therapists. But submitting a video showing that the person has trouble walking can be more convincing than “dry” medical records. Or, if the claimant is experiencing “brain fog,” comprehensive neuropsychological testing can be used to show cognitive impairment in a manner that the insurance company considers “objective.”

Another approach is to have the claimant submit to a Functional Capacity Evaluation (also known as an FCE). An FCE is designed to evaluate a claimant’s physical capacity to perform work activities related to his or her employment. A report by a functional capacity evaluator can go a long way toward establishing the credibility of a complaint of localized pain or brain fog is preventing a person from performing the duties required to complete their job duties. A report that is accompanied by a video of all or most of the exams would be even better.

Additionally, FCEs can often be physically taxing on the insured. If that is the case, the claimant can also record a video immediately after examination detailing fatigue and other symptoms that are present. This can be especially helpful to show slurred speech or similar symptoms.
Another way to provide information to the insurance company, outside of standard medical records, is through a detailed personal statement, explaining the symptoms and how they impact their ability to work. This can take many forms; a claimant can prepare a straightforward personal statement in which the person documents their problems and difficulties. For example, they can explain how their ability to complete certain tasks becomes affected through the day or when trying to perform them even for limited periods, perhaps that their vision now blurs after looking at a computer screen for too long. Another example, that their typing accuracy and speed deteriorates with increasing fatigue. In general, the more specific the information provided, the better.

What to do if the Insurer Refuses to Approve the Claim
Of course, a claimant can do all of these things and provide the insurance company with reams of information supporting their claim, only to see it denied. In the best of times, with a mix of objective and subjective evidence supporting a well-established diagnosis, convincing an insurer to approve a claim is difficult. Given how new long-haul COVID claims are to the insurance industry, it is expected that these claims will be viewed skeptically and similarly to other subjective claims. Thus, denials will be plentiful based on an alleged lack of objective evidence.

Of course, long-term disability insurance companies will rarely state they are denying a claim because the claimant only has subjective symptoms not supported by objective evidence. Instead, the more likely outcome is that insurers will attempt to minimize the claimant’s subjective complaints and assert that their medical records do not support their claim for benefits.

Insurance companies have an affirmative duty to inform the insured about what information is needed to support a claim. It is not sufficient for the company to simply say “you have not submitted enough information to support your claim” without adding what information is needed. Accordingly, anyone making a claim should clearly and repeatedly asks their insurer to state what clinical evidence they need to assess or even “measure” a long-hauler.

At the end of the day, a person submitting a disability claim based on a diagnosis of long-haul COVID should expect pushback from their insurance company. But, a claimant should not abandon a meritorious post-COVID claim in the face of skepticism from the insurance company.

If the claim is denied, the claimant should appeal, utilizing the methods outlined above, and, if necessary, litigate the claim. Even if the initial appeal to the insurer fails, most jurors are likely to understand that disabilities based on intangible symptoms such as fatigue, pain, and brain fog are no less real than those that can be verified with MRIs or blood tests. Insurers are required to pay meritorious disability claims, even when science is still struggling to define and describe the mechanisms that underlie the claimant’s disabling condition. Long-haul COVID claims should be no different.