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Slow to Start, Covid Disability Insurance Litigation Is Coming

June 25, 2021, 9:36 AM

Litigation against insurance companies for failing to pay disability benefits to people who can no longer work after having Covid-19 is on the way, attorneys say, the cases just take time to gain momentum.

Deadline extensions from the Labor Department, difficulty getting medical records from doctors reeling from the public health emergency, and many people still working from home has drawn out an already lengthy internal appeals process beneficiaries must go through with an insurer before they can take their case to court. While the delay has stalled litigation for now, disability insurance lawyers expect to see more cases filed in the future, as people return to their offices after periods of telework and learn how Covid might affect their ability to work in the long term.

“You’re getting these long haul Covid type cases now and the symptoms are just really unknown, and whenever I’ve seen cases where it’s hard to match symptoms to a specific etiology of a disease, I’ll notice claims like that getting denied,” said Chris Roy, owner of Roy Law Group in Portland, Ore., who represents claimants.

“There will be cases filed and they will be litigated, and there will be case law that will help flesh it out, but it’s just too early in the process.”

Back-And-Forth

Even without a global pandemic, disputes over claims for private disability insurance take time. The Employee Retirement Income Security Act (ERISA), the federal law governing employer-sponsored disability benefits, requires people challenging denied benefits to first complete a back-and-forth internal review process with their insurer or plan administrator. This process, which can last months or even years, is when the parties collect the medical and other evidence that will be reviewed in court if the dispute proceeds to litigation.

Under ERISA, beneficiaries have 180 days to file an appeal after a claim is denied. In response to the pandemic last year, the Employee Benefits Security Administration extended several deadlines for disability claimants, including the deadlines for filing benefit claims and appealing adverse decisions.

EBSA put the 180-day deadline on hold during the public health emergency and released guidance saying the clock doesn’t start ticking again until at least 60 days after the national emergency ends or one year after the denial, whichever comes first.

To have a solid claim for disability benefits there has to be a diagnosed medical condition from a doctor and a list of restrictions and limitations caused by that condition, said Tom Sinclair, founder of Sinclair Law Firm LLC in Birmingham, Ala. With Covid-19 though, doctors are still figuring out its long-term impacts.

“How do you diagnose a condition that’s developing around you right now?” he asked. “How do you know what that looks like?”

Sinclair represents people fighting insurers over refusals to pay disability benefits. He has a few cases now over benefits that were denied for a disability caused by Covid-19. For one client, it took eight months after the initial denial to get the documentation from the physician and send the patient for neurocognitive testing to prove they couldn’t work.

“We’re trying to get the medical community to give us things for insurance claims while the medical community is just trying to get people out of the hospital or get them back into the hospital for further treatment,” he said. “When we’re asking them for information for one of their patients and saying the insurance company is demanding it, the physician offices are not exactly going to put you at the top priority in the middle of a pandemic.”

In the beginning of the public health crisis, the process for getting medical records was slow, said Andrew Hamelsky, a New York City-based White & Williams LLP partner, who represents life, health, and disability insurers. “It’s gotten much better in the last six months,” he added. He’s now getting records pretty regularly.

Hamelsky’s clients expected a flood of claims in the beginning of the pandemic that didn’t really materialize. The claims that are coming in are mostly being paid, he said.

Because the Labor Department extended the deadline to file an appeal, it could be another year or two before there’s a lot of litigation, said Joshua Bachrach, a partner at Wilson Elser Moskowitz Edelman & Dicker LLP in Philadelphia, who represents insurers.

“Not every attorney, not every claimant is taking advantage or needing to take advantage of the extension,” he said.

America’s Health Insurance Plans (AHIP), a trade group that represents insurers, didn’t comment on the assertions that disputes are delayed and future litigation is on the horizon.

Disability Delayed

Some attorneys say the nature of Covid-19 itself may be playing a role in keeping these benefits disputes out of court for the time being. The lingering Covid symptoms most likely to cause disability include fatigue and cognitive impairment, which can take a while to fully manifest and become disabling, Cassie Springer Ayeni, an attorney representing disability claimants, told Bloomberg Law.

“For the people who have come to me with long Covid claims, it’s usually six months after the acute infection when they’re finally realizing they’re not able to get back to work,” said Springer Ayeni, who is president of the law firm Springer Ayeni in Oakland, Calif.

“It’s not the classic scenario where somebody breaks a leg,” she said. “For people with long Covid, it takes some time to realize they’re not going to get back to work right away.”

People suffering from long Covid have reported debilitating bouts of fatigue, trouble breathing, muscle and joint pain, and difficulty thinking clearly, which has become known as “brain fog,” as well as anxiety and depression.

Many people who may ultimately seek disability benefits for their lingering Covid symptoms are highly-motivated, white-collar employees who become unable to work due to the fatigue and cognitive impairments that the disease can cause, Springer Ayeni said.

“If you’ve got cognitive problems, you’re not going to be able to be accurate in your work. If you’re doing accounting, you’re not going to add up those numbers correctly, and that’s a big problem,” she explained.

Existing Accommodation

Corporate policies blessing telework may be another factor pushing disability benefits battles further into the future. As more white-collar workers are called back into the office, we may see a new wave of Covid-related disability claims, said Erin Ronstadt, a Phoenix-based attorney who represents disability claimants.

Many people covered by employer-provided disability policies are higher wage earners who’ve been able to work remotely during the pandemic, said the managing partner of Ronstadt Law.

“Being able to work from home has probably provided accommodations to people who would otherwise be filing claims. As people return to the office, I think we’ll see more claims filed,” she said.

Not everyone agrees. Hamelsky doesn’t see how being called back to the office would create a disability if someone has been performing the duties of their occupation from home.

“Disability insurers don’t insure your place of business, they insure your ability to work,” he said. “If you’re able to successfully work from home performing your duties, then you’re not disabled.”

Defense attorneys also say there could be disability claims filed by people who fear going back to the office.

“If they have a compromised immune system that may be one thing, but if someone just has a fear, well, that’s a different story,” Bachrach said.

To contact the reporters on this story: Lydia Wheeler in Washington at lwheeler@bloomberglaw.com; Jacklyn Wille in Washington at jwille@bloomberglaw.com

To contact the editors responsible for this story: Carmen Castro-Pagán at ccastro-pagan@bloomberglaw.com; Fawn Johnson at fjohnson@bloombergindustry.com

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