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April 21, 2021

Long-Haul COVID-19 Claims and WC

Summary:

Employers and workers' comp carriers must tread lightly; accepting a COVID claim can have a big impact, beyond the initial care and recovery.

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Over a year since the first shut down, and the windy road to a pre-pandemic world remains bumpy. For employers, this means responding to yet another COVID-19 occupational health concern arising from long-haul COVID-19 symptoms. These symptoms manifest in tens of thousands of individuals who survived the fight against COVID-19, only to be faced with lingering effects and symptoms, despite negative COVID-19 test results. In the medical field, this condition is called Post-Acute Sequelae of SARS-CoV-2 or PASC, also known as long-COVID-19 or long-haul COVID-19.

The Centers for Disease Control and Prevention (CDC) describes these symptoms as those that persist more than four weeks after first being infected with the virus that causes COVID-19. Long-haul symptoms include ongoing fatigue, “brain fog,” difficulty sleeping, loss of smell and taste, joint pain, shortness of breath, and coughing per the American Medical Association. These symptoms may also include palpitations, headaches, dizziness, muscle pain, anxiety, and depression. 

The reason why some suffer these symptoms while others don’t remains unknown. In February 2021, the National Institutes of Health announced a $1.15 billion initiative to support research into the causes and ultimately the prevention and treatment of long-haul COVID-19. So while symptoms vary and long-hauler research is developing, the result on employers and the returning workforce remains considerable

Long-haul symptoms are surprisingly common. Surveys cited by the CDC – in a January 2021 Clinical Outreach and Communication Activity webinar – reflect the following: 

  • 35 to 54% of people with mild acute COVID-19 had persistent long-COVID-19 symptoms after two to four months.
  • 50 to 76% of people reported new symptoms they had not experienced during the acute illness, and some had reappearance of symptoms that had resolved.
  • 9% described their long-term symptoms as severe.

These statistics mean that the return to work process will be anything but simple. Employees afflicted with long-haul symptoms may require long-term disability benefits. Or, they may only be able to return in a part-time capacity or require modified work; and for those infected at work? If they have a previously accepted workers’ compensation claim, the virus becomes the mechanism of injury, rather than the injury itself, with secondary symptoms that arise from the original incident, like most other industrial claims. In these cases, the challenge for employees will be proving that the symptoms are related to the original COVID-19 infection. 

See also: Long-Term Disability in the Time of COVID-19

But what happens when a workers’’ compensation claim wasn’t filed when the employee first tested positive? If the original COVID-19 symptoms were mild, for instance, it’s quite possible that an employee never filed a claim form – and since long-haul symptoms can arise months later, claim forms may be filed months after a positive test. Investigating these claims will prove much more challenging as contract tracing requires the employee’s recollection of activities engaged in months and months prior – which provides even harder for long-haulers with neurological symptoms and/or brain fog. Deciding to accept such claims then will depend on conducting late-stage investigation and may depend, in part, on whether one of the rebuttable presumptions applies to the original date of injury, all of which puts further pressures on California’s already stretched businesses. 

In fact, the Workers’ Compensation Insurance Rating Bureau has estimated that California’s presumptions could cost workers’ compensation payers between $600 million and $2 billion, even though the typical COVID-19 claim costs less than $3,500.00, with the healthcare industries being hardest hit as 42.3% of all COVID-19 claims arise from this sector.  

Another likely effect of late reporting will be the potential retroactive impact on Labor Code section 3212.88’s “outbreak” provision. The provision requires employers to keep track of all COVID-19 cases and report the highest number of employees who reported to work at the employee’s specific place of employment in the 45 days preceding the last day the employee (who reports COVID-19 infection) worked at each specific place of employment. This is for the purpose of calculating  “outbreaks” to determine if a rebuttable presumption applies. However, if a claim is reported months later and retroactively creates an “outbreak,” the impact could be staggering, particularly on previously filed claims which may not have qualified for the presumption based on the originally reported numbers. 

When litigation arises, all parties will be challenged because of limited case precedent as long-haul symptoms arise well after the infection/diagnosis. Lyme disease and asbestos exposure cases, for instance, may prove useful but will not be definitive. Medical evidence will be absolutely necessary in any disputed case to tie the symptoms to the infection. 

When these claims are first reported, a thorough medical history should be taken and special consideration should be given to occupational medicine or primary care treatment to manage the claim. Eventually and depending on the symptoms, a referral to internal medicine, cardiology, and/or pulmonary specialists may be made. Keeping the claim on track from the outset will be especially important for carriers and employers.

See also: Benchmarks, Analytics Post-COVID

There is some reason, however, for cautious optimism as some long-haul symptoms are improved by vaccination; with 30-40% of long-haul sufferers noting some improvement post-vaccination, per Aikiko Iwaskio, a Yale immunologist . As COVID-19 vaccine distribution continues nationwide and overall infection rates drop, the number of long-haul sufferers will ideally decrease as well. 

All in all, employers and carriers must tread lightly, as accepting a COVID-19 claim can have a significant impact, beyond the initial care and recovery. Handling these claims with watchfulness and caution from the very beginning is vital. Getting a thorough medical history and conducting as much investigation at the start remains key as well.

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About the Author

Diana Tsudik is a partner and managing attorney for Gilson Daub. With a business litigation background, she has experience with federal, state, and workers’ compensation matters. She represents Fortune 20 companies and small businesses alike.

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