The category of disability claims described as “environmental exposure” are not the same as disabilities that result from exposure to toxins in the workplace. This includes disabilities that result from being physically present in a work location. COVID-19 presents many different situations of environmental exposure risks that can lead to a disability. Here are a few scenarios:
Individuals with underlying conditions at a high risk of complications from COVID-19 may determine that the risk of returning to the workplace is too great. Treating physicians will likely advise patients not to return to the workplace. Disability insurance companies are likely to push back against these claims; we anticipate that the corporate line will be that the person has chosen not to work and therefore has violated the terms of their disability policy, despite their doctor’s recommendation.
COVID-19-Related PTSD – Hundreds of thousands of healthcare workers in hospitals, EMTs, nursing homes and related services have experienced conditions that can best be described as combat zones. The mental stress is a just beginning to be reflected in disability claims. How will these claims be treated, and how well supported will claimants prepare their claims are important issues that will be significant.
Addiction Exacerbated by Environmental Exposure – Addictions to pharmaceutical medications are a risk for healthcare professionals. Frankel & Newfield has represented physicians who were able to get their addictions under control, but found that being in their workplace – hospitals, clinics, medical practices – make it next to impossible to manage their addiction.
It should be noted that the number of prescriptions for anti-anxiety and antidepression medications have surged with the pandemic. A recent article in The Wall Street Journal reported that prescriptions for these medications increased dramatically in March and April. The combined stresses that the coronavirus has created, including general fear, uncertainty, unemployment, and social isolation are having a significant impact on American’s well-being. Doctors are concerned that the use of medication may lead to addictions that remain after the pandemic has ended.
A dentist suffers from severe bronchial asthma, and her treating physician establishes that her disability is a result of long-standing exposure to respiratory irritants in the workplace, notably formaldehyde and common dental-specific irritants (grinding silica, ceramic and porcelain crowns, acrylic, and amalgam). She had scarring on a pulmonary CAT scan as well as poor results from Methacholine inhalation tests and pulmonary function tests. The disability insurance company did not argue against the fact that when she was treated with high-dose steroids, she did receive short-term, incomplete relief. But the insurer’s paper medical reviews failed to take into account the simple fact that when she was not treating patients, the doctor was asymptomatic.
Frankel & Newfield overturned the claim determination, and our client is receiving her benefits on a monthly basis – satisfying the proof of loss for her environmental disability.
Increasingly, evidence suggests that many COVID-19 coronavirus patients experience long-term symptoms that impede their ability to work and live normally. At first, it was thought that the long-term effects of COVID-19 were mainly respiratory illnesses or cardiac defects resulting from severe cases of the Covid-19 coronavirus. But as the months have passed, it is becoming clear that the long-term impact of the coronavirus pandemic will lead to many short- and long-term disability claims.
A federal government workshop dedicated to long-term COVID-19 illness determined that the condition needs to be given a name and be taken seriously by doctors. The number of people afflicted is expected to become a significant public health issue. Experts estimate that tens of thousands to hundreds of thousands of Americans will become disabled.
For disability insurance companies, this is an overwhelming number that will cut into the insurance companies profits in a big way. The symptoms include cognitive and psychological problems in addition to respiratory and cardiac issues.
Many of the symptoms are similar to chronic fatigue syndrome or fibromyalgia: fatigue, joint pain, vision changes, chest pain, brain fog, and depression. Patients who were not hospitalized and did not have severe cases are just as likely to have these long-term issues as those who were hospitalized. COVID-19 is still relatively new, so the insurance companies are keeping a close eye on claims.
Disability attorneys Frankel & Newfield have already spoken to many people who have filed short-term and long-term disability claims after having COVID-19 and had their claims denied. We recommend contacting our office to find out how having a disability insurance attorney can help you go through the process of filing a claim or fighting a denial. Here are the tactics we are already seeing from the disability insurance companies: If you are about to file a short term or long-term disability claim for a COVID-19 condition, you will need to establish when you became ill.
The insurance company will want to know what kind of medical care you sought, when you went to see a doctor or went to an urgent care clinic. The disability insurance company will also want to know if you went to the hospital, and how you were taken to the hospital: did a family member bring you, or were you taken by ambulance to the hospital. Obtaining medical records when your hospital or doctor’s office is dealing with the COVID-19 pandemic may become a nightmare. Getting medical records is often a sticking point with long-term disability benefits, but getting medical records when healthcare systems are overwhelmed by COVID-19 patients is even more difficult.
It’s just not a priority when critical resources are in short supply and lives are at risk. If you succeed in obtaining medical records, be aware that your disability claims success hinges on not just how sick you are, but how you are unable to perform the tasks and duties of your occupation as a result of your having COVID-19.
Doctor’s notes that do not include this information can put disability claims due to COVID-19 at risk. Follow up care to a disability created by having COVID-19 is necessary for your disability claim to be considered by the insurance company. If your treating physician is not a pulmonologist, infectious disease specialist or cardiologist, your disability may be challenged on the basis that you are not pursuing the best possible care.
COVID-19 patients who have recovered following a severe case requiring care in an ICU (Intensive Care Unit) and a ventilator are likely to suffer lung damage. Many people who experience severe respiratory illness go on to develop ARDS – Acute Respiratory Distress Syndrome – a life-threatening injury to the lungs where fluid collects in the air sacs (alveoli) in the lungs. The typical progression for COVID-19 begins with a dry cough, severe headache or sore throat. The virus produces thousands of copies of itself, which feature the now-familiar spiky round shape.
Those spikes are surface proteins that attach to receptors on healthy cells throughout the body. Once the viral proteins gain access to the cells, they kill the healthy cells. Part of the ferocity of COVID-19 in the lungs is that is travels deeper into the lower airways, where there are more receptor cells than in the upper respiratory tract, which is why pneumonia occurs frequently. When lungs become inflamed, breathing becomes difficult and the body is not able to get enough oxygen to feed the vital systems that keep us alive.
ental offices have had to change how they practice dentistry. Patient management now involves limiting the number of patients in the office, the use of thermometers before patients are permitted into the office, investing in personal protective equipment (PPE), cleaning products, masks, face shields, and plexiglass shields in reception areas and in clinics, if patients are seen in a large open space. Even with all the right precautions, it is still possible that the dentist may be exposed to COVID-19. Dentists with underlying conditions must be extremely cautious. Some may decide to file a disability claim for their underlying issue, rather than put their life at risk.
The risk that nurses face every time they go to work has never been recognized more than during the current coronavirus pandemic. Shortages of personal protective equipment and hospitals that were unprepared and overwhelmed by the number of cases left many nurses exposed and at risk in the workplace. The question of how or if nurses’ disability claims resulting from coronavirus is not yet known, as the claims are so new.
One of the tactics we believe the disability insurance companies will attempt will be to claim that the illness is the result of an injury suffered at work and try to pass the claim off as a Workers’ Compensation claim. Workers’ Compensation coverage is for medical costs, lost wages, and ongoing care costs. But if the nurse has paid for a disability insurance policy, they should be eligible for monthly benefits from their disability insurance policy also. However, even if eligible, there may be an offset (reduction) of the benefits paid due to the payment of Workers’ Compensation benefits.
Another tactic that we expect nurses to see when they file disability claims will be requests for extensive medical records. The nature of nursing to be exposed to illness and stressful situations will lead the disability insurance company to look for any hint of a mental/nervous condition in an attempt to limit the company’s exposure to a 24-month limited payment period. Many group policies obtained through work contain such limitations.
“Own occupation” is another provision that nurses must be watchful for when filing a disability claim. Many disability policies have an “own occupation” provision that is limited to a set number of months. After that, they convert to an “any occupation” policy. The disability insurance company may terminate the claim after a number of months, stating that the nurse can work in another capacity, either as a nurse in a less stressful environment or in a private practice, where compensation is considerably lower.
A person whose immune system is compromised, whether because of medical treatment or illness, is eligible to file for short or long-term disability. The same environment that may have been acceptable to immune-compromised people before COVID-19 could be life-threatening today. This includes front-line workers and anyone who worked or had to travel in crowded conditions where potential airborne spread could occur.
In the experience of the attorneys at Frankel & Newfield, the disability insurance companies will likely attempt to deny claims based on the theory that a person who was able to work before COVID-19 in a particular environment is still capable of performing the material tasks and duties of their occupation. The coronavirus pandemic is still relatively new, and disability insurance companies are working through their policies and tactics. The best recommendation is to work with an experienced disability insurance attorney to strategically prepare a claim in advance, anticipating delays, denials, and eventual terminations.
You need an attorney whose practice focuses on disability insurance. Many workers are finding that despite the goodwill and intentions of their employer, the disability insurance companies are not providing any flexibility in their claim coverage requirements. Someone who is on short-term disability because of an illness and was unable to return to work because their risk factor is too high may not be deemed eligible for disability benefits. The issue may hinge on the support of the treating physician, and whether they would prevent or restrict the claimant from their work as part of their treatment.
We have represented many individuals who were suffering from post-illness disabilities where environmental exposure posed a significant risk to their well-being. The coronavirus is new, but the scenario is not. Some employers may consider an at-risk person to have made a decision not to work and denied their short or long-term disability claim. The insurance company may point to a provision that defines the difference between not working because of a disability and not working because of a threat in the immediate work environment.
These are challenging times for any type of disability claim, particularly those resulting from COVID-19. To speak with one of our experienced disability partners, please call our office at 877-583-2524 for a free consultation.
Secrets the Disability Insurance Companies Don't Want You to Know!