In the Altea blog, attorneys from the Covid Long-Term Consequences Association discuss legal issues faced by Long COVID sufferers. In this article, Christian Haag looks at issues surrounding daily allowance insurance. The following case is fictional but based on actual experiences:
I caught Covid last spring. I have been unable to return to work since then because of Long COVID (severe fatigue, physical weakness, brain fog). My family doctor has declared me unfit for work.
Initially, my loss of earnings was covered through my employer’s daily sickness benefits insurance. The insurance provider then asked for an independent medical assessment, which they claimed did not result in any “objective medical evidence”. Meanwhile, my employer has given me notice of termination of employment. The daily allowance insurance provider has now said that it will stop paying the daily allowance at the end of the month. I get no financial help at all, but am still completely unfit for work, and my family doctor agrees. What kind of financial support am I entitled to?
The assessors used by daily allowance insurers are not neutral or independent, but are seen by the courts as being biased.
In your case, there are a number of insurance schemes that apply – daily sickness benefits, disability and unemployment insurance.
The daily allowance insurance provider is stopping your benefits because it considers you fit for work based on its own medical report. However, these reports are not considered authoritative, as the assessors used by daily allowance insurance providers are not neutral or independent but biased. This is because they are selected and paid for by the daily allowance insurance provider, which is predominantly concerned with profits. If you were to take the daily allowance insurance provider to court, this medical report would only be considered an assertion.
Going to court can pay off
The daily allowance insurance provider’s medical report may well prove inaccurate in medical terms and not given be much weight as evidence. Hence, check whether it might be worth taking the daily allowance insurance provider to court. To do so, consult a specialist attorney. Any claims concerning daily allowance entitlements lapse after two years. Taking your daily allowance insurance provider to court can easily take six months or longer.
Court or no court? A question that requires careful consideration.
Irrespective of your daily allowance insurance, you may be eligible for Invalidity Insurance (IV/AI) benefits if you have been unable to work for more than 12 months: under the IV/AI scheme, you are considered incapacitated if your capacity to work has dropped on average at least 40% without any major variation for a year and is anticipated to continue at that level on expiry of that year.
IV/AI: apply as soon as possible
To make sure you’re not going to lose out on any DI benefits, always apply early (German) just in case. This is because IV/AI benefits are only paid 6 months after applying at the earliest, which is why daily allowance insurance providers urge people to apply for IV/AI if they have been unable to work for longer than six months. However, it often takes more than a year for a IV/AI application to be fully processed. IV/AI providers (and associated pension schemes) will often only award benefits if a “DI-relevant” medical condition has been identified. Quite often, achieving this outcome requires entering into a legal dispute or taking the insurer to court.
Needs must: legal action
In cases such as yours (negative daily allowance insurance medical report), the IV/AI provider often denies IV/AI benefits, which means you will have to take legal action. You actually have a good chance of success because the daily allowance insurance medical report is not neutral and objective, in particular if it misrepresents important medical information. However, in our experience, it can often take over a year until a definitive (and hopefully positive) IV/AI or court decision is made. Until then, people will often not receive any IV/AI benefits.
It can take over a year until the IV/AI makes a definitive decision.
The third insurance scheme is unemployment insurance (UI). People only qualify for unemployment benefits if they are in a position and willing to work. If a person considers themselves or is considered to be 100% unfit to work, they do not qualify: If you are not able to work (not in a position to and/or willing), you also can’t be ‘out of work’ (unemployed).
This puts you in a tricky situation:
- Your family doctor considers you unable to work, and so do you.
- But according to the daily allowance insurance provider’s medical report, you are able to work, which means that you are not entitled to daily allowance.
- This is when the IV/AI provider should really step in, but won’t (yet).
- Unemployment insurance is only paid if you are able to work.
If your capacity to work is 20%, you are entitled to unemployment benefits.
In terms of the legal issues involved, this paradox gets resolved through the unemployment insurance’s obligation to pay benefits while a IV/AI decision is pending. Until the IV/AI provider has made a decision, you are considered able to work. Under the statutory provisions, the UI provider therefore has to pay you benefits while the IV/AI provider’s decision is still pending. According to the Federal Supreme Court’s jurisdiction, the unemployment insurance provider is liable to pay benefits while a IV/AI application is being processed and a person has an adjusted residual capacity to work of 20%. If the unemployed, incapacitated person is at least 20% able (and correspondingly in a position) and willing to work, they are consequently entitled to full unemployment benefits.
What you need to do to get financial support.
We recommend proceeding as follows in order to benefit from the unemployment insurance provider’s obligation to pay benefits while an IV/AI decision is pending:
- Get a medical certificate from your family doctor that states that you have a “residual capacity to work of 20 % in a suitable role on a trial basis”. You will have to explain to your family doctor that you need this certificate in order to for the unemployment insurer to pay out.
- Register with your regional job center. Make clear that, according to your family doctor, your capacity to work in a suitable role is at least 20% and that you are willing to work to that extent, are looking for a job and will accept one. On that basis, you qualify for the full amount of unemployment benefits in terms of the unemployment insurance’s obligation to pay benefits while a IV/AI decision is pending. Do not let them tell you otherwise and insist that they accept your registration.
- If the regional job center gives you a hard time, refer to the daily allowance insurance’s medical report, according to which you are able to work.
- Agree the number of jobs you have to demonstrably apply for in a month with your job center adviser and then apply for that number of jobs, even if it seems pointless and doesn’t make any sense.
- The additional information in this leaflet (German/ French) will also be of use.
It may also be possible to take action against the daily allowance insurance provider at a later time. However, claiming unemployment benefits on the basis of the unemployment insurer’s obligation to pay benefits while a IV/AI decision is pending means that you will receive financial support and will be compensated for some of your lost earnings.
Every case is different. This is why it is advisable to consult a specialist attorney if you are unsure how to proceed. Please also check whether you may have legal defense insurance or whether your health insurance, supplementary insurance, contents insurance or TCS (Touring Club Switzerland) includes legal expenses cover. This would help you pay for the attorney.
Attorney Christian Haag (LL.B) is a Certified Specialist SBA in Torts and Insurance Law and a partner at Häfliger Haag Häfliger (www.anwaltluzern.ch) and president of the association “Verband Covid Langzeitfolgen”.
