John Lezemore and Derek Adamson take a look at the potential for Covid- and Long Covid-related claims due to exposure to coronavirus at work, and outline considerations for insurers as the situation develops

Over 93,000 workers suffered from Covid-19 in 2020/21, which they believe may have been from exposure to coronavirus at work, according to data from the Health and Safety Executive. The Industrial Injuries Advisory Council is also investigating alleged workplace-related Covid-19 for deciding whether Covid-19 becomes a prescribed disease for benefits purposes. This is an issue that businesses, and particularly their insurers, need to be better prepared for, as there is a possibility that we could see an avalanche of Covid, including Long Covid claims.

Long Covid involves lingering symptoms of the virus for more than a month after infection. It is currently a poorly understood condition with sufferers reporting tiredness, breathing difficulties, a loss of smell, and problems concentrating. It has also been linked to an array of other symptoms like joint pain, nausea, insomnia and depression. It is thought that at some point the organic explanation will become less significant and for cases with enduring symptoms, the question will be whether a psychological process is in operation (somatisation) and insurers may need to approach such cases in the same way as they deal with other somatic illness cases.

Establishing legal causation, meaning proving that the negligence caused the alleged condition (a necessary component of any such claim) will be an issue for any Covid
claimant. A Long Covid claimant will have the added complication not just of proving that the initial infection arose from breach of duty but that there exists or remains a causal connection between the alleged long-term condition and the act(s) of negligence. It follows that, with so many symptoms also associated with other causes, proving Long Covid can and will be a minefield for sufferers.

The potential claim value could be very significant too. Many Long Covid sufferers may not be able to return to their jobs for a substantial period and we do not yet know whether they will ever make a full or significant recovery. That may make such claims attractive to claimants’ solicitors. With employers required by law to insure themselves against liability for injury or disease caused to their employees whilst at work, insurance companies will have to deal with any such claims.

Preparing for Long Covid claims

As with many diseases, there are several unknowns. We are still in the midst of the global pandemic and are still learning about the disease. Post-pandemic, as epidemiological evidence matures, we may see development of the law of causation specific to Covid. We may also see the policy-based exception from the normal rules applied since the early 2000s to asbestos-related mesothelioma claims extended to this arena.

Aside from potentially costly Long Covid claims, insurers could see a raft of fraudulent or exaggerated claims, comparable to fraudulent whiplash and exaggerated somatic illness claims and need to be gearing up for this.

Insurers should take steps now to better prepare. First, it is important to take this seriously and identify a dedicated team to open and process these claims. This team may already exist and, if they are not familiar with the relevant law and medical science,
then they need to be taught, and be trained to spot the red flags. Alongside this, they are advised to appoint a law firm with the necessary pedigree to be on standby, and ready to litigate landmark, law-making claims (and the potentially more expensive Long Covid claims) on their behalf.

Insurers would also be advised to monitor developments at the IIAC, as if Covid becomes a prescribed disease for benefits purposes, insurers need to be ready to act if claimants decide to adopt the approach to causation.

This article was published in the March-April 2022 issue of CIR Magazine.

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