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Reports of lingering symptoms of COVID-19 have experts concerned about how these “long-haul” cases may impact the workers compensation system.
With symptoms that vary widely and the unknowns over how long they will persist, the comp industry needs to prepare for the possibility of long-haul coronavirus comp cases, experts say. Twenty states either have COVID-19 presumptions in place or are considering such legislation for a virus whose total impact is yet unknown.
“We just don’t know what our claims team will see later, and without the long-hauler type research, definitely need to be cognizant of that,” said Kimberly George, Chicago-based global head of product development and innovation at Sedgwick Claims Management Services Inc., in webinar on Feb. 16.
While most individuals who have suffered from COVID-19 recover within a few weeks, research published by the American Medical Association estimates that about 10% of COVID-19 patients experience lingering symptoms that include ongoing fatigue, “brain fog,” difficulty sleeping, loss of smell and taste, joint pain, shortness of breath, and coughing.
And for long-haul coronavirus cases in worker comp, there “definitely may be an argument that some of these are causing long-term disability,” said Rich Lenkov, capital member and head of the workers compensation practice at Bryce Downey & Lenkov LLC in Chicago.
“I think there will be some liability there,” he said. “But remember, (the worker) still has to prove that they developed COVID from work, and even in states with a presumption … I think it’s a hard case to prove.” Many of the state presumptions are rebuttable, meaning the employer can fight the claim by attempting to prove the worker was not infected on the job.
The key to understanding COVID-19’s long-haul impact could be found in the history of other diseases, such as Lyme disease acquired through a work-related tick bite or pneumoconiosis from long-term work exposure to asbestos, experts say.
“What’s somewhat similar to COVID is the symptoms might not manifest themselves right away,” Mr. Lenkov said. “But in terms of the value of that injury, there’s not much precedent to go on.”
Michael Russell, a plaintiffs attorney and partner in the Greensburg, Pennsylvania, law firm of Mears, Smith, Houser & Boyle P.C., said he’s litigated many workers comp Lyme disease cases over the years with varied results as to whether the claim is picked up.
“I’m suspecting that the kind of cases (similar to Lyme disease) that we’re going to see on COVID are probably going to be the front-line medical personnel,” he said. “But the defenses are going to be significant. … In these types of novel cases, they’re going to need medical evidence to relate the symptoms to the diagnosis. Those symptoms, based upon what we’re seeing, could be very different.”
Another issue is placing the value on a long-term COVID-19 disability with symptoms such as loss of sense of smell or taste that may not appear on state schedules for rating disabilities.
“If losing your ability to taste or smell is related to your vocation,” such as for a chef or sommelier, “it’s even more lucrative,” he said.
As a workers compensation defense attorney whose clients are primarily in the hospitality industry, Anthony Cannizzo, partner in the Los Angeles office of Manning & Kass, Ellrod, Ramirez, Trester LLP, said he “fully expects” to see a loss of sense of taste or smell claim come across his desk at some point.
“My advice to my clients is going to be that we really focus on the value of the medical evidence to the extent that there are reliable studies to make sure that these opinions are not predicated on junk science,” he said.
“You’re opening Pandora’s box if you accept the claims out of a sense of good faith and sympathy,” Mr. Lenkov said. “If you accept (coronavirus claims), you do so at your own peril. You’re potentially buying into an unknown injury down the road.”
More insurance and workers compensation news on the coronavirus crisis here.
Hawaii lawmakers on Wednesday joined at least a dozen states so far in 2021 to propose legislation that would make COVID-19 a compensable illness under workers compensation.