An estimated one in three people who contract Covid-19 will continue to experience symptoms months later, even if their initial symptoms were mild or absent. Known as “long Covid,” this disease is only beginning to be understood, but one of its more frustrating features is the dominance of subjective symptoms, such as fatigue and brain fog, which can be hard to prove. New research, however, offers hope for proving disability due to long Covid.

Why Is Objective Evidence Important?

Objective evidence is observable to the self and others. Therefore, it is hard to refute (although, arguably, open to interpretation). Subjective evidence, in contrast, is observable only to the self. Because only the patient can know the severity of his or her subjective symptoms, the patient’s credibility is necessarily at issue. Disability plan administrators will often attempt to discredit a claimant’s subjective symptoms, for example by pointing to alleged “inconsistencies” between the claimant’s alleged abilities and activities observed on surveillance, in an attempt to show the claimant is not being truthful.

Unlike worker’s compensation and personal injury claimants, disability claimants generally don’t need to prove the etiology of their subjective symptoms to receive benefits. However, the presence of some corroborating objective evidence of disability (assuming such evidence can exist) is important. In the case of long Covid, an example of “objective evidence” is a positive Covid-19 test result. But how do you prove disability due to long Covid once the initial illness has subsided? The following studies offer some insight.

Long Covid’s Impact on Exercise Tolerance

New research has found similarities between long Covid patients and those with myalgic encephalomyelitis/chronic fatigue syndrome (ME/CFS) in terms of how they tolerate exercise. A recent survey of 3,762 people with long Covid found that 89% endorsed “post-exertional malaise” (PEM), or exacerbation of fatigue after exercising, much like chronic fatigue patients. Researchers have found that both patient populations exhibit the same blood vessel problems when they exercise. That finding suggests that the same methods used to prove disability due to chronic fatigue syndrome could be helpful for proving disability due to long Covid.

The gold standard for measuring post-exertional malaise in chronic fatigue patients is cardiopulmonary exercise testing (CPET). During a CPET, the patient wears a mask while exercising on a treadmill or stationary bicycle. The gas exchange through the mask is then analyzed. In the case of chronic fatigue syndrome, testing on two successive days is recommended.

At least one court has found CPET testing to be dispositive in a case involving chronic fatigue syndrome. In Vastag v. Prudential Ins. Co. of Am., CV156197KSHCLW, 2018 WL 2455921 (D.N.J. May 31, 2018), the court ruled that the defendant insurance company abused its discretion when it denied disability benefits to a Washington Post reporter who suffered from severe chronic fatigue syndrome. The court found Prudential’s refusal to acknowledge the existence of any impairment to be “particularly troubling when theCPETdirectly measures functionality and its results illustrate Vastag’s inability to engage in normal functioning, let alone the duties of his job.” Id. at *13.

However, other courts have upheld the denial of disability benefits to chronic fatigue patients despite the submission of CPET results that supported disability. See, e.g., W. v. Unum Life Ins. Co. of Am., CV 16-9527-JFW (ASX), 2018 WL 6071090, at *15 (C.D. Cal. July 3, 2018),aff’d,798 Fed. Appx. 154 (9th Cir. 2020); Nagy v. Hartford Life & Accident Ins. Co., 16-CV-05309-HSG, 2018 WL 2183269, at *11 (N.D. Cal. May 11, 2018),aff’d,800 Fed. Appx. 555 (9th Cir. 2020). The forgoing cases demonstrate that CPET, while useful, is not a substitute for traditional evidence of disability, including treating physician support.

Another complicating factor is the lack of facilities that perform cardiopulmonary testing for chronic fatigue syndrome. Although pulmonologists and cardiologists routinely perform CPETs to evaluate heart disease and lung conditions, they are not trained in the evaluation of chronic fatigue syndrome. Workwell Foundation, which performed the CPETs in all three cases cited above, boasts that it offers laboratory-style testing specifically for EM/CFS. However, Workwell currently has only three locations (in California, Arizona, and New York). Thus, unless you are fortunate to live in one of those states, you may have to travel, at significant personal expense, to undergo testing. Before incurring that expense, be sure to contact an experienced disability benefits attorney to ensure the testing is worthwhile.

Long Covid’s Impact on Brain Volume

Another promising area for inquiry is the impact of Covid-19 on brain volume. A recent study of people aged 51 to 81 found shrinkage and tissue damage in the front of the brain, in the areas responsible for smell, memory and other functions. The patients did not exhibit memory impairment (though the memory tests administered were rudimentary), but they did demonstrate impairment on the trail-making test, which evaluates visual search speed, scanning, processing speed, and executive functioning.

It is too early to draw conclusions as to how Covid-19 impacts the brain, and whether those changes are permanent, but brain scans could offer a viable means of proving abnormality in long Covid patients. That is especially true if the brain scans show a reduction in grey matter compared to a peer-based norm group, or relative to the white matter in the patient’s brain. Neuropsychological testing should also be performed to confirm the presence of a cognitive impairment, though neuropsychological testing can backfire – for example, if the patient’s fatigue interferes with his or her ability to give full effort during testing. For that reason, it is best to consult an experienced disability benefits attorney early in the case to devise a strategy and prevent doing harm to your case.

Conclusion

Our understanding of long Covid is still in its nascency, and new research brings new discoveries each week. However, for those struggling with the inability to work, the need for legal representation cannot wait. With over 70 years of combined legal experience, the attorneys at DeBofsky Sherman Casciari Reynolds P.C. are skilled at proving functional limitations due to disability, regardless of the cause. Allow us to bring our experience to bear for the benefit of your case.

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