Did Brain Fog, Mental Illness Excuse Drywaller’s Late COVID-19 Claim?

What Do You Think?

Arizona generally gives employees a year from the time of injury to file a workers’ compensation claim. But what if an employee doesn’t know that her illness is the type of injury covered by workers’ compensation law? Will that excuse their late filing? Consider a case involving a drywall installer whose lightbulb went off one day when it was already too late to file.

The claimant in that case contracted COVID-19 in June 2022 while working at a nursing home. She suffered ongoing symptoms and was later diagnosed with long COVID. During that time, she underwent surgery for a hernia and spent a short time in the hospital. Aside from that, she wasn’t hospitalized.

One day, she read in a newspaper article that a person could file for workers’ compensation based on a COVID-19 diagnosis. Until that moment, she thought workers' compensation only covered physical accidents, like falls or lost limbs. A lightbulb went off and, on Oct. 10, 2023, she filed a claim.

An ALJ dismissed her request for a hearing in January 2025, ruling that the claim was untimely. In Arizona, a workers' compensation claim must generally be filed within one year of the injury.

The claimant appealed, arguing that the ALJ should have excused her untimely filing. She argued, among other things, that she was mentally incapacitated and that delayed her ability to understand her rights and file her claim. To support her mental incapacity argument, she pointed to her mental health providers' determination in March 2024 that she met the criteria for a serious mental illness. She also pointed out that her long COVID symptoms included brain fog and trouble concentrating. 

The failure to timely file a workers' compensation claim may be excused if:

1. The injured worker delayed filing due to justifiable reliance on a material misrepresentation by the worker’s compensation commission, employer, or insurance carrier: or 
2. If the injured worker was insane or legally incompetent or incapacitated at the time the injury occurs, at the time the right to compensation accrues, or during the one-year period thereafter.

Should the claimant be excused for filing late?

A. No. She was never incapacitated.

B. Yes. Her diagnosis of serious mental illness showed she was incapacitated.

If you selected A, you agreed with the court in Diaz v. Industrial Commission of Arizona, No. 2 CA-IC 2025-0004 (Ariz. Ct. App. 01/20/26, unpublished), which declined to excuse the lateness of her filing.

As to the first exception, it wasn’t enough that she didn’t realize that workers’ compensation could apply to a COVID-19 infection. “[A] claimant's belated realization of a legal right is not a legally cognizable basis for excusing an untimely filing,” the court said.

The claimant also failed to meet the second exception. She may have had a serious mental illness designation. However, that designation occurred six months after she filed her claim. Moreover, there was no evidence that she was deemed mentally incapacitated by a court. Her statement that she had brain fog and trouble concentrating following was not enough to show she was mentally or physically incapacitated. The fact that she was never hospitalized, except for a brief period when she had surgery, further bolstered the argument that she was not incapacitated. 

Because the claimant met neither of the exceptions, the court affirmed the ALJ’s dismissal of her hearing request.

Find caselaw plus COVID-19 resources on Simply Research.

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