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Long COVID comp claims face challenges as presumptions end


Despite the pandemic officially declared over, COVID-19-related workers compensation claims continue to be filed and courts are continually weighing in on compensability and whether workers have suffered temporary or permanent disability due to long COVID.

Experts say the trend is likely to continue despite the expiration of most workers comp presumptions and especially given the uncertainty surrounding long-term medical issues.

“Unfortunately, it’s still a hazard in the workplace,” said Marcy Goldstein-Gelb, co-executive director of the Somerville, Massachusetts-based National Council for Occupational Safety and Health.

In January, Alabama appeals judges ruled a trial court wrongly dismissed a workers comp claim filed by a nursing assistant who says she suffered permanent lung damage from COVID-19, which she claimed to have contracted at her job.

Rena Meeks argued that her job duties created a unique hazard because she was directly exposed to nursing home patients’ bodily fluids. The employer challenged the claim, saying COVID-19 couldn’t qualify as an occupational disease because the virus “affected everyone.”

The appeals court said the trial judge prematurely dismissed the complaint because of lingering causality questions.

Other appeals courts have offered opposing opinions, such as a West Virginia case where appellate judges declined to give permanent partial disability payments to a hospital employee who claimed her depression, anxiety, fatigue and shortness of breath were due to a COVID-19 infection she contracted at work. 

Long COVID continues to plague many workers, and the courts may see more cases where injury causation is challenged, Ms. Goldstein-Gelb said.

Expired presumptions and the understanding that some long COVID symptoms may be associated with other ailments are spurring court activity, experts say.

John Kamin, an equity partner with Woodland Hills, California-based law firm Bradford & Barthel LLP, said employers that want to challenge a workers comp claim should focus on treating COVID-19 as a specific injury rather than a cumulative trauma injury.

“It either happened or it didn’t,” Mr. Kamin said. “That’s the way we have to investigate COVID claims at the outset.”

Because the general public can contract the virus almost anywhere, establishing workplace-linked causation is crucial, he said.

There are no longer any COVID-19 presumptions in workers comp but some states have presumptions for infectious, respiratory or contagious diseases that may be interpreted as addressing COVID-19, according to Laura Kersey, division executive-regulatory and legislative analysis, for the Boca Raton, Florida-based National Council on Compensation Insurance.

Compared with years past, legislative activity on this front is slow — only one state appears to have introduced a COVID-19 presumption bill thus far in 2024, she said.

Introduced on Jan. 19, Maryland S.B. 431 would establish a long COVID presumption for essential government workers, and opinions are mixed whether such legislation could gain traction elsewhere.

“As more and more people are impacted and are telling their stories and speaking up (about long COVID), that’s when those sorts of trends happen,” Ms. Goldstein-Gelb said.

Jeff Eddinger, senior division executive with the NCCI, said the Maryland measure is unique in that it addresses long COVID, which can comprise a range of symptoms and not one specific injury.

“I wouldn’t necessarily say that this is the start of a new trend when it comes to legislation or presumptions. This one seems like a little bit of an anomaly,” Mr. Eddinger said. “But if this one is approved, you never know if other states might consider similar things.”