The novelty of “Long COVID” requires new arguments and detailed medical records
While attorneys say they have few answers for those calling their offices seeking help over the ongoing debilitating symptoms of COVID-19, legal experts are certain it will be a long battle to get disability benefits for long COVID-19 receive.
The biggest obstacle these people face in getting disability insurance is that they don’t necessarily look sick or disabled. Her “hidden disability” requires many documents supporting the diagnosis of long COVID and detailing how the symptoms are so disabling that the sufferer cannot work.
Even then, the applicant may still not be able to convince the administrative judge who will rule on his case.
“[There is]a level of skepticism, I think, that’s ingrained in the Social Security disability process,” said Stacy Crider, a partner at the Hankey law firm in Indianapolis. “Judges have to have a level of skepticism because there’s always this fear of fraudulent or non-genuine motions and allegations. So I think this can lead to a tendency towards skepticism in such gray areas.”
The situation is made worse by the novelty of Long COVID. The novel coronavirus that caused the pandemic only emerged in late 2019, and the medical community is still investigating those who survive the disease but are not recovering, or at least have not yet regained their health.
In December 2020, the Social Security Administration created a COVID-19 flag to identify and track the electronic disability cases that are created when people either claim they have an illness caused by the coronavirus or have been medically determined to have are impacted due to COVID.
About seven months later, the Department of Health and Human Services, along with the U.S. Department of Justice, issued guidance on how long COVID could be a disability under the Americans with Disabilities Act.
Melissa Keyes, executive director of Indiana Disability Rights, noted that recognition does not automatically provide protection under the ADA to all long COVID patients. The long-distance drivers have yet to undergo an analysis to determine whether the disease affects one or more important life activities.
Keyes pointed out that the relatively recent Long COVID outbreak marks a new contingent of people as disabled. And because they were previously healthy and productive, they may have trouble finding resources or not realizing that they can take action against their employer if they are made redundant.
“It will be interesting to see if that changes or if we will see a cohort of people who are experiencing disability for the first time and are unaware of their disability as more and more people are included in the disability community with rights or how to enforce them.” ‘ Keyes said.
Crider estimates that she first spoke to a long-distance rider about nine months ago, and since then she has either spoken to or represented more than a dozen others.
Applying for disability benefits is a long and tedious process that can take many months and requires a trip to the 7th Circuit Court of Appeals. But long COVID sufferers face additional challenges.
Long-haul drivers in particular could be biased because “COVID has been politicized,” Crider said. In addition, their symptoms do not fit into any of the categories that Social Security normally considers in disability cases.
As a result, Crider said she had to develop arguments claiming that the person with long COVID couldn’t work because she couldn’t be consistent.
“So it would be an argument that because of the symptoms they have or because of their conditions, their amount of absenteeism or their amount of absenteeism or the extra breaks they would need or something like that, an employer wouldn’t tolerate something like that.” said Crider. “So that would ultimately lead to termination. And so they might have been eligible for disability because of that and could not maintain that employment.”
Keyes speculated that a lack of understanding among long-distance drivers could do more damage to their own careers.
“I think part of what we’ve seen with the ‘big resignation’ could be in part due to people who may be suffering from long-term COVID or related symptoms just saying, ‘I’m just going to look for a job that allows for full remote interrogation all the time,’” Keyes said.
Since the Great Recession, Social Security Disability Claims have steadily declined year over year, from 2.94 million in 2010 to 1.82 million in 2021.
David Pinyerd of Pinyerd Disability Law in Indianapolis said people who have been seeking benefits for a long time COVID have not overwhelmed the system – but that could change. In general, people typically wait many months before applying for a Social Security disability, and when working remotely, long-distance drivers may have been able to offset their limitations by working from home.
However, as more employers are recalling workers to the office, coupled with the potential for ADA complaints of discrimination, Pinyerd asserted that COVID-related claims could increase the backlog of disability claims and appeals.
A key obstacle to securing benefits is the nature of long-term COVID. In the absence of a clear blood test or laboratory result, the diagnosis is based on the patient’s symptoms and signs.
That may long put COVID on changing ground. Pinyerd pointed to schizoaffective disorder, which historically received almost automatic recognition as a disability. But recently the Social Security Administration has backed down, making these cases harder to prove.
Pinyerd said people with this disorder hear voices or believe they can see Jesus, so it would undoubtedly be difficult, if not impossible, to find employment. But without a definitive test, or even a telltale sign of the disorder, these individuals are now struggling to convince the courts that they are disabled.
For long-time COVID sufferers, Pinyerd advises getting a written diagnosis. He urges long-distance drivers to see a specialist and ask them to write a detailed letter stating whether or not the patient is able to work.
“The first thing they look at is always the doctor’s letters and the files. And that’s where the case begins,” Pinyerd said. “So, I think one thing with COVID and long-distance drivers, a lot of people are talking about their symptoms and complaining about it, but maybe they don’t have a lot of medical records to back it up. In this case, even if it’s 100% legitimate, it won’t help.”•