Attwood Marshall Lawyers Compensation Law Senior Paralegal Amy Lewis looks at the rising number of people experiencing Long COVID symptoms and consider what legal avenues are available to them for compensation.
Summary
The COVID-19 pandemic triggered the largest global crisis in decades with significant implications for health and the economy around the world.
Three years later, the economic burden of COVID-19 remains unknown. Australia faces considerable slowdown in economic growth and rising inflation rates. While economists cautiously predict that Australia should narrowly avoid recession, thousands of Australians continue to confront severe health implications caused by their contraction of COVID-19.
In fact, about 500,000 Australians are currently suffering from severe Long COVID symptoms.
The estimate is based on reports of 11,277,613 Australians being infected with COVID-19 to date, and 5-10 per cent of those experiencing troubling symptoms more than three months post contraction, according to studies published by the Australian Institute of Health and Welfare.
The true number of Long COVID sufferers in Australia is likely to be much larger. The World Health Organisation released studies in 2022 showing that around 10-20 per cent of people infected by SARS-CoV-2 may develop symptoms that can be diagnosed as “Long COVID”.
Worldwide, about 65 million people have suffered from Long COVID, per a review article published in Nature Review Microbiology. In the United Kingdom, approximately 2 million people were experiencing self-reported Long COVID as at 2 February 2023, representing approximately 10 per cent of total people infected.
Notwithstanding the greater impact of the condition to the Australian workforce, workers affected by COVID symptoms have faced difficulties in accessing benefits of any kind.
Why can it be difficult to claim compensation for Long COVID?
The main reason difficulties arise in obtaining compensation is because Long COVID affects people’s health in different ways and there remains considerable uncertainty about the length of time people will experience such symptoms. There is a dearth of sufficient medical research in Australia.
According to the Australian Department of Health, the term “Long COVID” is generally used to describe ongoing symptoms lasting more than four weeks, or a post-COVID condition or syndrome persisting over 12 weeks that cannot be explained by any suitable alternative diagnosis.
The symptoms can vary from mild to severe. The most common symptoms are:
- fatigue (tiredness),
- shortness of breath, and
- problems with your memory and concentration (brain fog).
Other symptoms include:
- heart palpitations, chest pain or tightness,
- a persistent cough,
- changes in taste or smell,
- joint and muscle pain,
- pins and needles,
- problems sleeping (insomnia),
- changes in mood (increased worry, anxiety, or depression),
- dizziness,
- headache,
- low-grade fever,
- skin rashes,
- hair loss, and
- nausea, diarrhoea, stomach aches, or a loss of appetite.
What compensation claims may be available?
COVID-related compensation or insurance claims are not easy to substantiate. Typically, disability-related insurance claims for income protection, total and permanent disability (TPD), and workers’ compensation are the primary options available to seek compensation when suffering from Long COVID.
Each case will turn on its own facts and circumstances.
Workers’ Compensation Claims
To succeed with a workers’ compensation claim, the Long COVID-affected worker must prove that they contracted the virus in the course of their employment and work activities wherein their employment was the main contributing factor to their contraction of the virus.
This can be difficult in circumstances where it is often impossible to prove where in the community a widespread virus may have been contracted. For example, a worker may assume they caught COVID (leading to Long COVID) at work from an infected colleague, only to find that they contracted the highly infectious virus elsewhere in the community. In such circumstances, the contraction of the virus would not be considered to have been incurred during the course of the worker’s employment.
On 14 May 2020, the NSW Parliament passed an amendment to the Workers Compensation Act stating that workers with COVID-19 who work in certain types of employment will be presumed to have contracted the virus at work or while working.
If a claim of this nature is accepted, a physician would eventually be needed to declare that the claimant has reached “maximum medical improvement” and to assess permanent impairment incurred as a result of the illness so the claim can be administratively closed.
Both Queensland and New South Wales follow The AMA Guides to the Evaluation of Permanent Impairment (AMA Guides). Currently, AMA Guides does not mention Long COVID or provide guidance on how to assess individuals for impairment after recovery from this illness.
For that reason, the physician would have to identify manifestations of COVID-19 by rating permanent impairment within the respiratory, cardiac, vascular, neurologic, renal, gastrointestinal, and mental systems in claimants, which would be challenging.
Doctors often draw a connection between COVID or Long COVID symptoms to other viruses (e.g. the flu). Establishing a causal connection between the worker’s employment and their contraction of the virus can be difficult, although not always impossible.
Superannuation Claims
Most life insurers offer clients coverage for claims from new applicants for the novel coronavirus and do not contain any general exclusions in relation to epidemics or pandemics. For these policies, if you are experiencing Long COVID, you can lodge a claim as you would for any other illness. In general, insurers do not require applicants to be vaccinated.
Nick Kirwan, Policy Director from the Financial Services Council, understands that income protection would be the main relevant type of insurance available to those suffering from Long COVID. Mr Kirwan’s view was shared in an ABC news story, where he indicated that for this type of claim it would be only necessary “to get signed off by a doctor to say that they’re not able to work… and the Long COVID that they’ve got is the thing that’s preventing them from being able to work”.
Conversely, Mr Kirwan mentions that total and permanent disability insurance would be almost impossible to claim at the moment because not enough is known about Long COVID.
Income Protection
If your reaction or condition is short term and expected to improve with a return to work, an income protection claim would pay up to 75 per cent of your pre-injury salary for your benefit period or until you are able to return to work (after the applicable waiting period has been served).
Total and Permanent Disablement (TPD)
If your reaction or condition is severe enough to deem you as unlikely to return to work, a total and permanent disablement claim can provide a lump sum amount providing you meet the relevant definition contained within your policy.
To claim TPD insurance, you must provide evidence that your illness or injury has forced you out of work and that you remain unable to work in the future. Medical evidence and other necessary documents must be sent to your super fund in order to receive your lump sum TPD payout.
Read more: Making a TPD or terminal illness claim on your super
Read more: Superannuation insurance policies
Covid Claim Scheme
The Government’s Covid-19 Vaccine Scheme has fallen short in providing financial compensation to individuals who have been adversely affected by COVID vaccinations. If you aren’t suffering specific conditions outlined in the Vaccine Scheme policy, you are ineligible to claim under the scheme.
Conditions claimable under the Scheme include:
- Anaphylactic reaction;
- Thrombosis with Thrombocytopenia Syndrome;
- Myocarditis;
- Pericarditis;
- Capillary leak syndrome;
- Demyelinating disorders including Guillain Barre Syndrome (GBS); and,
- Thrombocytopenia.
If you are suffering one of the identified conditions, trying to find a medical practitioner who is willing to complete the Government’s required medical report to lodge a claim seems almost impossible.
Many horror stories of adverse Covid-19 reactions are still appearing in social media and the affects seem more widespread than expected. Organisations such as Jab Injuries Australia continue to publish stories of individuals who have been severely disabled by vaccination, the majority of which conditions are not covered by the Scheme.
If you have been adversely affected by a Covid vaccination and you are unable to return to employment, you may have a claim through insurances attached to your superannuation fund. These types of claims include income protection and total and permanent disablement (TPD) claims.
Attwood Marshall Lawyers – helping people obtain meaningful compensation to receive the treatment and financial security they need
Attwood Marshall Lawyers are experts in compensation claims including WorkCover claims and TPD and superannuation claims. We have been helping people for over 75 years to obtain successful compensation for their injuries and medical conditions.
We want to ensure that our clients can access their full entitlements as quickly as possible so that they are able to move on with their life and focus on what matters most: their health, their family, whilst having financial security. After all, no one wants to spend days, weeks, or months dealing with insurance companies who ultimately do everything in their power to reject valid claims.
For a confidential discussion about your specific circumstances, please call our Compensation Law Department on 1800 621 071 any time.
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