Disability Claims Resulting from Exposure to COVID-19 Coronavirus and Other Environmental Threats

Dental 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 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 include 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 good will 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.