Long Term Problems with COVID-19 Workers’ Comp Claims

Several issues cloud the long-term outlook for COVID-19 workers’ comp claims:

Presumption laws
Even though it’s going to be a problem in many, if not most instances, to prove that a worker was infected with COVID-19 while on the job, “there will be some liability there,” according to Rich Lenkov, who heads a workers’ compensation practice at Bryce Downey & Lenkov LLC in Chicago. “But remember,” he said in an interview with Business Insurance, “the worker still has to prove that they developed COVID from work, and even in states with a presumption … I think it’s a hard case to prove.” So far, 20 states have passed laws saying that employees in certain fields who get COVID-19, notably in healthcare and related industries, are “presumed” to have contracted it on the job.

Lingering Symptoms
While most individuals who have suffered from COVID-19 recover within a few weeks, research published by the American Medical Association estimates that about 10% of COVID-19 patients experience lingering symptoms that include ongoing fatigue, “brain fog,” difficulty sleeping, loss of smell and taste, joint pain, shortness of breath and coughing.

These kinds of symptoms make it difficult to value long-term disability claims resulting from COVID-19. Symptoms such as loss of sense of smell or taste usually don’t appear on state schedules for rating disabilities. Evaluating the impact of losing one’s sense of smell for a chef or sommelier may be critical, which isn’t something disability schedules usually address.

Pandora’s Box
Another problem with COVID-19, according to attorney Lenkov, is how symptoms can take time to manifest themselves and be difficult to pinpoint, let alone prove. Michael Russell, a plaintiff’s attorney and partner in the Greensburg, Pennsylvania, law firm of Mears, Smith, Houser & Boyle P.C., compares COVID-19 to workers’ comp Lyme disease cases in this respect, where “the defenses [from insurers] are going to be significant. In these types of novel cases, they’re going to need medical evidence to relate the symptoms to the diagnosis. Those symptoms, based upon what we’re seeing, could be very different.” He warned insurance companies that “You’re opening Pandora’s box if you accept the claims out of a sense of good faith and sympathy … When you accept (COVID-19 claims), you do so at your own peril. You’re potentially buying into an unknown injury down the road.”

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