At this point in my career, I have litigated just about every type of ERISA claim I can think of, from denied benefit claims to deferred compensation/top hat claims to class actions. I have even made new law in the still developing area of equitable relief under ERISA. I got my start in ERISA litigation decades ago, though, as a long term disability (“LTD” to the cognoscenti) defense lawyer representing one of the major insurers providing disability benefits to employers. The private insurance disability benefit system, where the insurer first processes an administrative claim and appeal, and then any denial of the benefit is litigated in court, typically under deferential review, operates very well with regard to objectively clear causes of disability, such as a clearly diagnosed and precisely diagnosable disease. But it tends to run into problems, leading to more and more litigation, when more subjective disabling conditions are at issue. For many years, this dynamic showed itself in particular with regard to claims for LTD benefits arising from fibromyalgia and chronic fatigue syndrome, but over time, as the judicial treatment of disability claims based on these causes became more nuanced and sophisticated, the handling of these types of claims became more routine, both within disability insurance carriers and within the courts.

I was reminded of this by this editorial in the Washington Post (subscription likely required) concerning the potential future uptick in disability claims arising from diagnoses of long covid. While the article is targeted at the question of its impact on social security disability payments, it of course raises the same issue with regard to LTD insurance and claims. For me, it raised the question of how insurers and the courts will respond to a substantial increase in such claims, simply given that past history has shown that LTD claims arising from a diagnosis with a great deal of room for subjective interpretation can be complicated for insurers to decide and for courts to resolve. My own brief research into the question found only one published decision to date concerning a claim for LTD coverage based on long covid, and I cannot say that I have seen such decisions referenced in the ERISA reporting that typically crosses my desk. In fact, Chicago plaintiff lawyer Mark DeBofsky’s recent blog post on the subject addresses the details of making such claims but, by the absence of any reference to case law on the subject, suggests to me we are still aways from such claims making their way through the court system.