Long COVID: An Internist’s Medical-Legal Perspective

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Long COVID: An Internist’s Medical-Legal Perspective

IRA B. FISHMAN, MD, QME

SAN DIEGO, CALIFORNIA

INTRODUCTION

Though scientific research continues to focus on understanding COVID-19, we are faced with a new unknown in the form of long COVID. The medical-legal community must grapple with the challenges of assessing industrial claims of these persisting COVID complications.

BACKGROUND

COVID-19 is the infectious disease caused by the most recently discovered coronavirus, SARS-CoV-2 (severe acute respiratory syndrome coronavirus 2). SARS-CoV-2 and the resulting viral syndrome of COVID-19 were unknown before the outbreak in Wuhan, China, in December 2019.

The World Health Organization (WHO) declared the COVID-19 outbreak a Public Health Emergency of International Concern on January 30, 2020, and a viral pandemic on March 11, 2020.

Note: The U.S. Centers for Disease Control (CDC) defines a pandemic as an event characterized by a disease spreading across several countries and affecting many people.

SARS-CoV-2 virus is generally spread person to person through nose- or mouth-generated airborne droplets, or tinier particles called aerosols, carrying the virus into the air. A droplet of fluid such as a mucous secretion can remain briefly airborne and be projected for distances up to one to two meters. An aerosol is similarly projected but lingers longer in the air.

Such virus-containing droplets and aerosols are released when a virus-infected person coughs, sneezes or talks. A viral-contaminated surface (fomite) can also spread coronavirus if someone touches it and then touches their mouth, nose or eyes, but coronavirus fomite contamination is a less common route of viral exposure.

The average SARS-CoV-2 viral incubation period is 5.2 days. The symptoms of COVID-19 include fever, new continuous cough, loss or change of smell or taste, shortness of breath, fatigue or exhaustion, muscle aches, headaches, sore throat, blocked or runny nose, loss of appetite, diarrhea, sense of malaise and/or "feeling sick." These symptoms resemble those of other viral illnesses such as the common cold and influenza.

COMPLICATIONS

Up to 80 percent of COVID-19 patients recover from the disease without treatment. However, approximately one out of six infected individuals, particularly those with preexisting comorbidities, become seriously ill.

COVID-19 complications causing serious illness include pneumonia, progressive respiratory failure, acute respiratory distress syndrome (ARDS) requiring mechanical ventilation, myocarditis or other acute cardiac injury, thrombotic events, hospital-acquired infection and intensive care unit psychosis. Such COVID-19 complications lead to prolonged hospitalization, substantial morbidity, long recovery time and objectively measurable permanent damage to affected organs such as the lungs, heart and peripheral vascular system.

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Preexisting comorbidities worsening COVID-19 include age over 65, chronic immunosuppression, obesity, type 2 diabetes, asthma, chronic renal failure, hypertension, cancer, cardiovascular disease, cerebrovascular disease, chronic obstructive pulmonary disease, tobacco smoking, chronic steroid use, chronic liver disease, and dementia.

There are well recognized, objectively demonstrated sequelae of COVID-19, including new-onset asthma, diabetes, heart disease, paroxysmal orthostatic tachycardia syndrome (POTS) and renal disease.

DEFINITION

Long COVID (popularly termed "long haul COVID") refers to COVID-19 symptoms that persist beyond the acute phase of a SARS-CoV-2 infection; these are often referred to as "post COVID-19 symptoms."

In October of 2021, WHO, using the Delphi method (multiple surveys of an expert panel to achieve consensus), published a case definition of long COVID:

Post-COVID-19 condition is defined as the illness that occurs in people who have a history of probable or confirmed SARS-CoV-2 infection, usually within three months from the onset of COVID-19, with symptoms and effects that last for at least two months. The symptoms and effects cannot be explained by an alternative diagnosis.

World Health Organization, Coronavirus disease (COVID-19): Post COVID-19 condition, December 16, 2021.

This WHO definition relies on patient-reported symptoms, also common in defining functional somatic syndromes such as fibromyalgia, chronic fatigue syndrome, irritable bowel syndrome and chemotherapy-induced cognitive dysfunction. The WHO long COVID definition is a diagnosis of exclusion, without any demonstrable objective locus of pathology. No single objective diagnostic test defines the existence of long COVID. In contrast to the WHO definition, the CDC uses the term post-COVID conditions to describe symptoms of COVID-19 that persist four or more weeks beyond the acute phase.

Long COVID symptoms include subjectively reported fatigue, palpitations, shortness of breath on exertion (pulmonary function studies can be normal), tinnitus, vertigo, headache, chest pain, abdominal pain, diarrhea, insomnia, cognitive dysfunction ("brain fog"), anxiety, depression, diffuse musculoskeletal pain and persistent alterations of smell, taste and hearing.

Long COVID occurs weeks or months after asymptomatic or mild COVID-19 or after severe viral disease requiring hospitalization. The exact percentage of COVID-19 cases that result in long COVID remains uncertain. Varying percentages, up to 30 percent or more, have been described in the epidemiologic literature to date. Long COVID severity can wax and wane.

MEDICAL-LEGAL PERSPECTIVE

Long COVID scientific concepts remain incomplete at the present time, hampering accurate medical-legal analysis of long COVID in the California workers’ compensation system. The scientific study of long COVID is ongoing, and understanding of this new post-viral syndrome constantly evolves.

Long COVID medical-legal analysis is often the initial responsibility of a Board certified internist QME using the currently available scientific information and legal case law. New medical and legal insights are constantly developing due to intense ongoing scientific scrutiny of long COVID, possibly leading to new medical-legal evaluation insights for other functional somatic syndromes reliant on subjective symptom reporting.

I have based my own evolving internal medical-legal approach to long COVID on my 22-year medical-legal experience as a Board certified internal medicine QME, scientific studies published to date and my completed evaluations of approximately 25 long COVID cases to date.

For such COVID-19 industrial claims, discussions by medical evaluators must include COVID-19 AOE/COE. Many of these claims are subject to a legal presumption that is best suited to a detailed legal discussion by attorneys and judges.

To establish nonpresumption COVID-19 industrial etiology, case law in Sheila LaTourette v. Workers’ Compensation Appeals Board and Long Beach Community College District (1998) 17 Cal.4th 644 is relevant, requiring one of two legal exceptions to be present. The first exception is:

As a general rule such injury does not arise out of the employment and is noncompensable.

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The second exception in LaTourette, citing Johnson v. Industrial Acc. Com. (1958) 157 Cal. App. 2d 838, 840, is:

An ailment does not become an occupational disease simply because it is contracted on the employer’s premises. It must be one which is commonly regarded as natural to, inhering in, an incident and concomitant of, the work in question.

Citing 1 Hanna, Cal. Law of Employee Injuries & Workers’ Compensation, Injury and Employment, section 4.80[2], p. 4-106.1, LaTourette also provides:

two principal exceptions to the general rule of noncompensability for nonoccupational disease, or treatment therefor. First, if the employment subjects the employee to an increased risk compared to that of the general public, the injury is compensable. Second, if the immediate cause of the injury is an intervening human agency or instrumentality of the employment, the injury is compensable.

In COVID-19 industrial claims, applicants often minimize their perception of nonindustrial activities associated with SARS CoV-2 exposure and maximize their perception of workplace activities exposing them to the COVID-19 virus. Applicants frequently allege indoor proximity to unmasked coworkers occurring during breaks or mealtimes. I record SARS-CoV-2 industrial exposure allegations while describing my perception of the applicant’s credibility in providing an alleged workplace viral exposure history.

"Because long COVID symptoms are persistent, initial maximum medical improvement status for these cases is generally lacking and usually generates a six-month reevaluation request."

I always request from the parties the applicant’s complete medical record file and deposition transcript. The initial COVID-19 diagnosis and treatment medical records document the applicant’s contemporaneously stated history of when and how COVID-19 first manifested. Review of the applicant’s primary care medical records remains essential for determining whether preexisting nonindustrial disease states have adversely impacted current symptoms.

Review of the entire hospital medical record file (including any skilled nursing facility records) objectively defines the COVID-19 clinical course and what complications may have occurred. Applicant deposition review is also helpful, as is the potential review of investigative reports and/or interviews of coworkers and/or management personnel regarding adherence to workplace mask-wearing policies, existence of indoor versus outdoor work, workplace ventilation, and social distancing. The credibility of an applicant in describing an alleged SARS-CoV-2 viral industrial exposure is a legal matter left to final adjudication by the trier of fact.

Because long COVID symptoms are persistent, initial maximum medical improvement status for these cases is generally lacking and usually generates a six-month reevaluation request. The designation of long COVID as a chronic insidious progressive disease process may be appropriate (see General Foundry Service v. Workers’ Comp. Appeals Bd. (1986) 42 Cal.3d 331).

Long COVID symptoms lead to my recommendation that the parties generally schedule the following procedures:

  • Pulmonary function studies (PFTs) including diffusing capacity with and without inhaled bronchodilator to objectively measure lung function.
  • Six-minute walk test with the PFTs, a dynamic screening test measuring functional exercise capacity. If the result is abnormal, a university center cardiopulmonary exercise test (CPET) is required.
  • CT of the lungs to rule out post COVID-19 pneumonia pulmonary scarring.
  • Resting 2D echocardiogram to rule out post COVID-19 cardiac damage and/or any cardiovascular contribution to shortness of breath.
  • Fasting laboratory testing to rule out post COVID-19 kidney disease, diabetes, anemia and/or potential nonindustrial contributors to fatigue.

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  • Neurology PQME or AME evaluation of headaches.
  • Neuropsychological PQME or AME evaluation of cognitive dysfunction.
  • Ears, nose and throat (ENT) PQME or AME evaluation of vertigo, tinnitus, loss of smell or taste.

If psychiatric complaints are present, I recommend:

  • Psychiatric PQME or AME evaluation

If palpitations are present, I recommend objective evaluation with:

  • Zio patch outpatient cardiac arrhythmia monitoring to objectively evaluate potential disturbances of heart rhythm by continuously recording all heartbeats over seven days.

If clinical signs or symptoms of POTS are present, I recommend:

  • Tilt table test to evaluate symptoms of syncope (fainting) and/or postural changes in heart rate (orthostatic tachycardia) due to autonomic nervous system dysfunction. The tilt table creates changes in posture from lying to standing while monitoring the cardiac rhythm and blood pressure to objectively evaluate cardiovascular changes that may occur during such position changes. While monitored, the patient lies flat on a special bed or table with safety belts and a footrest. The bed or table is then elevated to an almost-standing position (60- to 80-degree vertical angle) to simulate standing up from a lying position.

If significant musculoskeletal complaints are present, I recommend:

  • Orthopedic (or pain management or physical medicine) PQME or AME evaluation

If sleep complaints are present, I recommend objective sleep evaluation with:

  • Overnight polysomnogram as discussed on page 317 of the AMA Guides, Fifth Edition. A sleep study provides an objective assessment of the applicant’s sleep pattern and can demonstrate what type of sleep disorders may be present.

EVALUATING THE FACTORS OF DISABILITY

Long COVID internal permanent impairment calculations for objectively demonstrated cardiopulmonary disease should use the AMA Guides Fifth Edition standard cardiovascular and pulmonary chapters and tables. Abdominal pain can be rated using Table 6-3 or 6-4. Thrombotic disease can be rated using Table 4-4 and/or Table 4-5. Chronic fatigue, if adversely impacting the performance of ADLs, requires a Almaraz/Guzman rating using the anemia rating scheme contained in Table 9-2.

Evaluation of temporary total disability (TTD), total permanent disability (TPD), formulation of work restrictions and description of future medical care remain problematic due to the present scientific uncertainty regarding long COVID etiology, case definition, and optimal medical treatment.

Periods of TTD and/or TPD, as well as work restrictions, are formulated based on the applicant’s objective findings and subjective reporting of symptoms including but not limited to those related to physical exertion and mental functioning. Future medical care, when objective findings are lacking, is supportive and may require referral to a tertiary care medical center long COVID clinic. University long COVID clinic examples include the multidisciplinary UCLA Health Long COVID Program and the UCSF OPTIMAL Clinic (pOst-covid-19/PosT-Icu MultidisciplinAry cLinic). Because long COVID may be ongoing and evolving with uncertain etiology and outcome, General Foundry case law principles may apply regarding the medical-legal nature of a chronic progressive insidious disease process.

CONCLUSION

Long COVID is a post COVID-19 illness that can affect up to 30 percent of those experiencing COVID-19. Symptoms vary from mild to severe and can include subjectively reported shortness of breath with normal pulmonary function tests; tinnitus; vertigo; headache; chest pain; abdominal pain; diarrhea; insomnia; cognitive dysfunction; anxiety; depression; diffuse musculoskeletal pain; and persistent alterations of smell, taste and hearing. The cause of and treatment for long COVID remain uncertain, as does the duration of illness. Scientific research concerning long COVID is ongoing and constantly evolving.

Afflicted workers may be substantially incapacitated and unable to perform some or all of their work duties. Future medical care may require referral to a university long COVID clinic.

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As we continue to learn more about long COVID complications, the medical-legal approach to long COVID must be multidisciplinary and governed by the specific set of symptoms experienced by each injured worker.

Dr. Fishman obtained his medical degree in Florence, Italy. He completed his internal medicine residency at the University of Massachusetts and did post- residency training in endocrinology at UCLA. He has been a QME for 23 years. Although he is retired from clinical practice, Dr. Fishman continues to work as an internal medicine QME with offices in Monterey and San Francisco.