Americans Suffering From Long Covid Fight Insurers for Benefits

Brandi Goodwin caught Covid-19 while tending to patients as a point-of-care technician at a Norwalk, Ohio, hospital in December 2020. When body aches and headaches lingered after she returned to work, she attributed it to stress from college exams.

But when her symptoms morphed into the multisystem disorder POTS and other related conditions, Goodwin was denied long-term disability from Unum Life Insurance Co. of America and eventually fired from her job. It took weeks of frantic searching to find a lawyer to take her case. Four years later, Goodwin is still fighting Unum in court.

Her administrative record spans 7,000 pages, according to a filing at the US Court of Appeals for the Sixth Circuit, and documents multiple emergency visits along with tests and attestations from long Covid specialists, cardiologists, neurologists, pulmonologists, and physical therapists.

Getting long-term disability benefits can be an uphill battle for the 5% of the US adult population CDC data shows is still affected by long Covid in 2024. Private insurers often push back heavily on long-term disability claims, and the unique pitfalls of appealing their decisions under the Employee Retirement Income Security Act create additional hurdles for plaintiffs.

“The laws are so different that it was just really, really, really hard to find a lawyer,” said Goodwin, now 30.

“Nobody wanted to take my case because it’s Covid,” she added. “It’s not a guaranteed win. It’s new territory.”

Brandi Goodwin dressed in her protective gear as a point-of-care technician in 2020.

Photo courtesy of Brandi Goodwin

Most patients resolve their cases outside of court, and the ones that do move to litigation are typically settled, plaintiffs’ lawyers said. Just a handful of long Covid patients have secured victories in court—and the insurance company usually appeals.

Unum, which declined to comment, says Goodwin can work, citing evidence of improvement from her doctors. The company also argues that her problems are attributable to pre-existing conditions and not eligible for coverage, pointing to a note from one doctor detailing a previous case of vertigo caused by a sinus infection.

Tough to Measure

Individuals with disabilities like long Covid have a number of options under state, federal, and private assistance programs, but that doesn’t mean they’re easy to obtain. Only a handful of states offer benefits, while just 39% of Social Security disability applications were accepted in 2023—with another 15% accepted on appeal. Lawyers estimate that denial rates for private insurance are even higher.

Insurance companies walk a fine line, since policies must be affordable to the average person yet pricey enough to cover the expenses of potentially millions of people. Miscalculating that risk could bankrupt the company and leave enrollees without promised payouts.

Disability policies that would cover long-term benefits for long Covid are often broadly written because the range of underlying medical conditions are hard to pin down, said Daniel Schwarcz, an insurance law professor at the University of Minnesota. Insurance companies say they must identify the people who are able to work even though an illness “makes it harder” in order to keep premiums low, he said.

“The real difficulty here is that disability is defined pretty universally in ways that are not objective,” he said.

Long Covid is notoriously hard to measure objectively. Two major characteristics of the disease are chronic fatigue and brain fog, both of which are hard to capture on paper.

Brain fog was just one of software engineer Christine Ward’s symptoms when Reliance Standard Life Insurance Co. denied her long-term disability claim. The 67-year-old had a prescription to help with cognition, but Reliance still argued she was capable of performing a “sedentary occupation.”

Reliance did not respond to a request for comment.

Ward’s cognitive trouble made her quit driving after she said she made a wrong turn into oncoming traffic.

“What if I caused an accident?” she said. “I would never be able to forgive myself.”

Ward won her initial case, but chose to settle afterward to avoid a lengthy appeal.

Legal Limitations

Nothing in the law itself restricts how the cases are treated in court, but a series of legal decisions has turned ERISA lawsuits into a functional extension of the administrative appeal with the insurance company.

Judges in ERISA disability cases like Ward’s typically don’t allow any new evidence outside of the insurer’s existing document record, which prevents lawyers from submitting new medical evidence or deposing company doctors who deny claims. That means patients’ best shot of overturning a disability denial is getting a lawyer to handle the internal appeal before it gets to court.

The general prohibition on discovery in many ERISA cases stems from the Sixth Circuit’s 1990 decision in Perry v. Simplicity Engineering, which said allowing new evidence would turn courts into “substitute plan administrators” and prevent both parties from resolving disputes “inexpensively and expeditiously.”

Plaintiffs are also usually denied jury trials and judges can remand cases back to the insurance company for another review. And while many states ban contract clauses that direct judges to give deference to insurers’ decisions on claims denials, not all do. Patients in those instances must clear a higher bar by showing the insurance company’s decision was not only wrong, but “arbitrary and capricious.”

“The federal judges have completely ignored the Federal Rules of Civil Procedure when it comes to ERISA cases,” said Mark DeBofsky, a disability lawyer with DeBofsky Law and attorney for Ward.

Lawyers can sometimes score some wiggle room. Edward Dabdoub, founder of Florida-based Dabdoub Law Firm, said he is able to build on small wins “one case at a time.” Convincing a judge to allow a deposition in one case might sway another judge in a similar case later.

“It is a process of chipping away and reversing the last 40 years of what has happened in the federal courts,” said Dabdoub, who largely works within the Eleventh Circuit.

Packing the administrative insurance appeal with supporting evidence is critical, because that evidence is usually excluded in court otherwise, benefits lawyers said. Mitre Corp. engineer Heather Cogdell’s recent victory against Reliance, for example, included scientific articles and character reference letters from friends and family.

Cogdell’s victory ironically hinged on the ERISA limits that typically favor insurance companies. Reliance initially denied her claim based on one nurse’s review, and was unable to present reviews from external physicians after it missed the 45-day deadline to issue Cogdell a final decision. The company has appealed.

Her attorney Damon Miller at Virginia-based BenGlassLaw tries to fill appeals with so much evidence that it’s “almost absurd” for the insurer to deny it.

“Making sure to get all the relevant medical records, making sure to get any additional testing that might be needed, getting doctors to write well thought out, well-reasoned letters” are essential, he said.

Tide Turning?

Several appeals court judges across the Sixth, Fourth, and Second circuits in recent years have leaned heavily on a close reading of the law’s text to question the way courts treat ERISA lawsuits.

None of those questions have yet surfaced in majority opinions, DeBofsky said, but he expects the issue will eventually end up at the US Supreme Court.

In the Sixth Circuit’s 2023 decision in Tranbarger v. Lincoln Life & Annuity Co. of N.Y., Judge John Nalbandian argued current ERISA case law violates the Supreme Court’s holding in US v. Tsarnaev, which “prevents lower courts from creating prophylactic rules that contradict federal statutes or rules.”

“In short, we told district courts not to consider new evidence,” Nalbandian wrote in a concurring opinion.

“In doing so, we failed to consider the text of the statute—the only clear indication of what Congress wanted,” he added.

In the 2021 decision Card v. Principal Life Insurance Co., Sixth Circuit Judge Eric Murphy similarly called the practice of remanding a decision back to the insurance company “quite an unusual thing.”

“Why shouldn’t the district courts instead oversee any additional litigation compelled by an arbitrary-and-capricious finding using the normal rules of civil procedure?”

While treatment has stabilized Goodwin enough to keep her out of the ER, her overall physical condition has declined as her appeal continues. A recent heart and lung test showed a drop in function compared to 2022, she said.

Goodwin said she is still unable to work and has been relying on family, church, and community aid programs for financial help.

“I feel like I cannot heal fighting these people,” she said.