What is Long COVID?

Risk Matters - Winter 2022

Picture of Mark Civetella

Mark Civetella

Partner, Mills Oakley

Mark Civitella is a partner of national law firm Mills Oakley and leads the firm’s Perth insurance practice. Mark has over two decades of experience as an insurance litigator. He is a preferred advisor to several Australian and global insurance companies and a number of self-insured companies and groups. Workers’ compensation claims are a significant part of Mark’s practice and in the past five years he has presented to many employers and industry groups in WA on the prevention and handling of claims. Mark is endorsed by several respected industry directories, including ‘Doyle’s Guide’ and ‘Best Lawyers in Australia’. Mark was recently announced as the Lawyer of the Year (Insurance) for the Best Lawyers in Australia Guide 2023 edition.

Long COVID refers to cases where the patient recovers from the acute COVID-19 infection effects but goes on to have longer term symptoms.

Post-acute illness from COVID-19 most commonly includes fatigue (similar to chronic fatigue syndrome), shortness of breath, chest pain, chest tightness, racing heart, loss of taste, loss of smell, difficulty concentrating, and “brain fog”.

Studies have shown that COVID-19 can infect multiple organs including the lungs, kidney, heart and the brain and, as such, secondary effects are legitimate and real risks of contracting the disease.

Due to research being ongoing and the limited duration of existing cases, it is still unknown whether long COVID symptoms will be permanent, or whether patients will eventually go on to fully recover.

However, at this stage, employers and insurers should not rule out the possibility of long-term compensation exposure including Schedule 2 lump sum entitlements for permanent impairment where such symptoms persist long term.

Assuming that a ‘personal injury by accident’ can be established on the medical evidence, such as through damage to a particular bodily organ as a consequence of the disease, it is possible that the impairment will be assessed by an Approved Medical Specialist as being likely to continue for the foreseeable future for Schedule 2 purposes.

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Symptoms of long COVID will be treated like any other secondary condition of an injury. If the COVID disease itself is found to be compensable, so too will the symptomatic effects of the disease.

Secondary psychiatric conditions are anticipated to be quite common, based on the experience of other jurisdictions. This is particularly the case among workers in high-risk industries where they may contract and recover from COVID-19 but develop anxiety around returning to work in an environment where a new infection could occur from re-exposure or exposure to different variants of the virus.

It is anticipated that difficult questions of causation may arise in cases of workers with co-morbidities. For instance, if an employee claims to remain unfit to work due to a symptom of fatigue after the acute phase of infection, expert medical opinion may be needed to address the cause of such and whether it is in fact due to contraction of the COVID-19 virus or a symptom of some other health condition.

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