The first sign was a runny nose, then a cold. Three years later, Julie Mathews needs two canes or a walker to get around.
Then 20 weeks pregnant with her fifth child, Mathews didn’t put much stock in the symptoms she began feeling in March 2020, until she saw a news broadcast urging the public to immediately contact a doctor about even the most common signs of a cold. A little-understood virus was sweeping the globe.
She tested positive for Covid-19 at a local hospital, and over the ensuing weeks, had to return several times with heart palpitations, shortness of breath, and a broken shoulder from a fall. When she’d leave, police would escort her to her car with a cleaning crew trailing.
Mathews, 38, of Seattle, is one of over 104 million individuals in the US who have tested positive. But the disease took a harsher toll on her than it did for many others. She kept trying to return to work as an applications support professional, only to hit a wall of fatigue that forced her back on leave. Pulmonology and cardiology tests, scans, and blood work revealed nothing. By 2021, she’d thrown in the towel and filed to go on long-term disability. She was denied.
“Everyone was like, we’re out of ideas,” Mathews said. “And that’s when my walk started getting a lot worse.”
Mathews is among a growing number of long Covid sufferers who have turned to the courts to fight for disability benefits after being turned down by Social Security or insurance companies. Lawsuits like those began trickling into federal courts in 2022 after disputes exhausted insurers’ lengthy internal appeals processes. So far, around 20 have been filed, according to a keyword search of Bloomberg Law’s litigation database—though some complaints may not always mention long Covid.
So far, the outlook for so-called long haulers is not promising. Most of the federal cases that ended have settled, leaving little precedent for success that attorneys can follow. Applicants for Social Security benefits must meet impact tests that have little to do with long Covid’s symptoms or how it progresses. Insurers have little legal incentive under the law to pay claims out of court, attorneys say. And many symptoms are subjective, or only perceptible to a patient.
Michelle Roberts, an attorney at Roberts Disability Law P.C., said she has her clients journal their symptoms, in part to compile “this whole picture of where somebody prior to Covid infection was very productive and didn’t have issues with fatigue or cognition. But now, they’re suffering significantly.”
‘Lamb to Slaughter’
The Centers for Disease Control and Prevention reported last year that almost one in five people infected with Covid experienced extended symptoms, including heart palpitations, shortness of breath, chronic fatigue, and brain fog.
Hugh Brent Solvason, a physician and professor at Stanford University, was launching a private transcranial magnetic psychiatry clinic when he was hit with Covid in 2020. His symptoms worsened to include a hand tremor, respiratory infection, trouble forming words, and “really profound cognitive difficulties.”
Solvason went from pulling 80 hour weeks to only a quarter of his university workload. Because of fatigue and cognitive difficulties, he had to rely on colleagues to manage his clinical practice.
“I couldn’t hold a thought in my head” while teaching and over time was almost unable to type, using “one finger” on the keyboard and still making mistakes, Solvason said. He struggled to finish spelling his name while gasping for breath on the phone with pharmacies. One night when trying to plan for classes, he felt like his thoughts were overcome by static, like a TV without signal.
“I’ve been earning half a salary. I live in an expensive area. If I didn’t have a private clinic and the help of my colleagues, I’d have had to sell my house and leave,” Solvason said. He noted Stanford Department of Psychiatry leadership was thoughtful, helping him adjust his workload so his fatigue didn’t affect his quality of care.
He applied for partial disability insurance benefits with the Prudential Insurance Co. of America but was denied, in a process Solvason said felt like “a lamb to slaughter.” With Roberts as his attorney, Solvason sued Prudential in December in a California federal court, which like others was brought under the Employee Retirement Income Security Act of 1974, or ERISA.
Insurers have little incentive to resolve these disputes through administrative appeals because they’re shielded from punitive damages in ERISA litigation, disability attorneys say.
“There’s no reason for an insurance company to approve a claim if they think they have any basis whatsoever to deny it, because the very worst thing that will happen to them is they will be sued and have to pay the benefits anyway,” said Stacy Tucker, a Kantor & Kantor LLP partner who represents Mathews in her lawsuit.
Another roadblock, Tucker said, is that many people didn’t get a diagnosis because there were no tests available in the early stages of the pandemic.
While cases have typically settled, a federal judge in December issued one of the first decisions calling long Covid a disability, ruling against
“I think there’s risk for carriers to go to judgment because decisions against them create precedent for future claims,” Roberts said.
Social Security Problems
In March, the Social Security Administration told Bloomberg Law that it’s flagged roughly 49,000 disability claims “that include indication of a COVID-19 infection at some point.” That’s up from roughly 27,0000 in April 2022, though both figures account for about 1% of applications in their respective time frames.
To qualify for Social Security Disability Insurance or Supplemental Security Income, a person needs to prove they have a condition stopping them from working and that will likely last at least a year or end up in death. But with long Covid, “people who are suffering from it don’t know how long it’s actually going to go on for,” said Kevin LaPorte, an attorney with LaPorte Law Firm.
Getting Covid through Social Security’s five-step Sequential Evaluation Process for Assessing Disability is proving a “big challenge,” LaPorte said. One step is whether the person has a “listing level” impairment, one SSA views as severe enough to stop someone from working. On this, LaPorte said, a claim based solely on long Covid would surely be denied because long Covid isn’t listed as an impairment.
Often, insurers argue long Covid claimants are “not disabled enough. Yes, they might be tired, they might have some brain fog, but that doesn’t mean they can’t do their jobs 40 hours a week,” Tucker said.
Doctors “don’t doubt it. They don’t think it’s fake or made up,” Tucker said. But “they don’t necessarily know what the prognosis is going to be, because no one knows whether people will be recovering from this quickly.”
In June 2022, nearly 20% of people polled in a Census Bureau and National Center for Health Statistics survey who say they have had Covid reported having long Covid symptoms at that time. This past January, that number dropped to a little over 10%, the Kaiser Family Foundation reported.
Meanwhile, the KFF also reported that a majority of people—79%—reporting they had long Covid suffered from limitations on their activities. Fifty-two percent, however, said the limitations weren’t significant.
Those findings lend some credence to a possible defense for insurers: that many people who thought they had long Covid have seen symptoms subside.
If symptoms end up being less severe or more short-lived than previously assumed, that could mean more people re-entering the workforce and fewer lawsuits over disability benefits. But if long Covid proves permanently disabling, Tucker said she’d anticipate an increase in litigation as insurance companies won’t be eager to cover it.
For Stanford’s Solvason, long Covid’s trajectory was “waxing and waning” until June 2021. After months of incapacitating fatigue, he suddenly felt he could get on a bike and began to ride. In the fall 2022, he hit “a turning point.” Suddenly able to think more clearly, Solvason decided to start running a few errands—Ace Hardware and Costco, specifically.
Mathews, however, says things have “gotten worse gradually.”
“Not like daily or weekly. But every couple of months, it starts to decline,” she said.
Initially, she was able to read books with little problem. Within months, she could only listen to audio books. Now, either option is out of the question.
“Within a few sentences, I’ve forgotten what the story is even about,” she said.
Her husband Britton, a software engineer, works from home and helps with most day-to-day activities, she said. In the past few months, it’s become increasingly more difficult to get up to help her children—now ages 12, 11, 8, 5 and 2—get ready for school.
As her struggle continues, Mathews is taking time to learn more about the symptoms. She’s troubled by what she’s found about heart-related heart conditions and other issues.
“That’s scary for the future for all of us,” she said.
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