By Frank N. Darras
You’ve just completed the last game of your college career. Your team won the National Championship. You’re looking forward to being an early round draft choice. You have a dynamite agent who came highly recommended. It’s an exciting time, who has time to figure out how ERISA (the shark in the water) could affect the rest of your life?
ERISA. What’s that and why should you or your agent even care? You’re going to be making the big bucks. You’re young, healthy and on your way up the athletic ladder of success. Why take the time now, to consider what would happen if you got severely injured? Besides, shouldn’t you be covered by a plan through the league, the team or the owner to cover your life, health and disability?
Well, just when you think it’s safe to wade into the PRO waters . . . . . Just when you think you’re ready to jump in and the water is safe . . . . Beware of the ERISA shark!
The Biology of ERISA:
It’s hard to be cautious about something you don’t know anything about. Here a brief breakdown of the beast known as ERISA.
The Employee Retirement Income Security Act (ERISA) was passed by Congress in 1974, to protect workers who were trying to collect benefits through their employer’s plans. For nearly three decades we all had protection. Unfortunately, ERISA has changed and become an insatiable shark protecting insurance companies and feeding on players, staff and owners.
Under ERISA, even if you hire the top insurance lawyer in America you will generally have to prove, without any doubt, the insurance company was wrong when it denied your benefits. The catch is, under ERISA there is no discovery; no depositions; none of your loved ones, fellow players, or doctors will come to trial to testify because under ERISA there is no trial. If your group insurer denies your benefits in an evil, vile or even a loathsome manner ERISA provides no punishment damages. No damages for your worry, sleepless nights or severe emotional distress and no damages for any extra-contractual losses. So if you lose your house, have to fire sale personal assets or your credit is ruined under ERISA there is no remedy. It’s hard to believe, a Federal law can have such a devastating and sweeping reach and so many people have never heard of ERISA. See http://www.darrasnews.com/?p=805.
ERISA can leave you without remedy. It doesn’t matter whether you are the CEO, the secretary or a star player, if you get your insurance from your employer you are subject to ERISA.
The worst part of ERISA, is that before you can even file a lawsuit under ERISA you must timely file your administrative appeal. In that administrative appeal all of the evidence you want the court to consider must be submitted. All of the medical, occupational, financial, vocational, testing, prescriptions, before and after witness statements or videos every single piece of evidence must be marshaled and submitted to the insurance company or the evidence is forever precluded.
Most insured’s do as the carrier advises and ask the carrier to review the denial believing their top insurance lawyer will get a chance to truly litigate the carriers wrongdoing. Under ERISA, all the evidence proving beyond a shadow of a doubt the carrier is wrong must be submitted on appeal.
Properly appealing your group health, life or disability claim requires stellar ERISA counsel to guide you through the legal maze so you can level the playing field.
What You Need To Know:
– A company-sponsored, group long-term disability plan will generally provide monthly benefits to the insured for up to 24 months if they are unable to do the important duties of their own occupation. Always check to see how long you are protected in your “own occupation”.
– After the initial 24 month period, the insured must be unable to perform the material duties of any occupation for which you are educated, trained or otherwise suited.
– When you enter this “any occupation” period, you generally must be Social Security disabled. What does that mean? It means you will be unable to work for any compensation, in any job, taking your age into consideration.
– Some group disability policies also limit coverage to 12 months of benefits if you have a mental nervous claim, fibromyalgia, chronic fatigue, pain complaints not objectified by ncv/emg or mri.
– Carriers also like to hire the paparazzi to videotape your activities if and when you leave your house. If you say you can’t bend, lift, stoop, push, pull, stand, walk etc. the carrier will make sure they follow you long enough to capture some activity they will cast as “inconsistent” with your restrictions and limitations.
While you wouldn’t mind being in the spotlight of a TV camera, video surveillance is an intrusion into your privacy and restrictive to your lifestyle.
Let me paint you a hypothetical picture. You’re swimming in the Big Leagues now. Three years into your career, you suffer from an injury that takes you out of the game permanently. This is like an open wound in the ERISA infested waters. First they find a way to deny your claim. Without your disability benefits your lifeline to health care is cutoff and you begin to sink. Your credit is damaged. You are forced to use all the equity in your home and other investments to live and your home is foreclosed on. None of the damages you have suffered are recoverable under ERISA.
What if the worst case happened and your injuries lead to death. Life insurance claims are no different. The ERISA sharks see no difference in their prey. There are few remedies available, lengthy administrative appeals and difficult, confusing standards most lawyers are unfamiliar with until it is too late.
Shark Repellent (The ERISA Solution)
– Buy as much individual disability insurance as you can afford. Remember you are insuring your income stream so occupation specific coverage for as long as you can buy it is job one. The reality is that 33% of all Americans between 35 and 65 become disabled sometime during their careers for at least 90 days. In professional sports, our risk skyrockets and we need to be protected.
– Remember to increase your coverage as you sign new contracts and you see an increase in your income.
– Don’t rely on group plans! Those are the shark-infested waters. Pay for your premiums yourself so that if you have to make a claim the benefits flow to you tax-free.
– If you are wrongfully denied, you will have rich consumer remedies with an individual policy.
– ONLY buy coverage that is “non-cancelable” and “guaranteed renewable.” That way the insurance company can’t cancel your coverage, increase your premiums or change any language.
– Read the fine print and make sure you understand what your buying and how to use the policy if the unthinkable happens.
One final note: If you need to file a claim, get in touch with a seasoned disability attorney BEFORE you start the process. A top insurance attorney can help bulletproof your claim so you get paid all you are owed.
About Frank N. Darras
Frank N. Darras is founding partner of the nation’s top insurance law firm, DarrasLaw. Darras has evaluated, litigated and resolved more individual disability and long-term care cases than any lawyer in America, recovering nearly half a billion dollars for insurance policyholders.
