Saving the American worker from the billion-dollar bully
By Frank N. Darras
There was a time in America when people grew up wanting to be millionaires. Bill Gates and Warren Buffet became icons and dreamers envisioned becoming a billionaire -- with a B. But where does that leave all the regular everyday workers of America, when the government is spending trillions -- with a T?
Here is the problem: We the people work hard every day to be average Americans. None of us are looking for private jet service, chauffeurs or personal chefs. We want to feed our children and have the freedom to save our hard earned money. We scrimp and save in hopes that one day, we'll be able to help our children get into a university -- while we age gracefully without being an imposition or a burden to the ones we love. We want regular college education for our children, and most of us do not anticipate a full scholarship to the Ivy League. Normal is okay and, in this economy, it's all us working Americans can afford.
Giving our children the fundamentals to be successful is our job as parents. Most of us don't have the whipped cream and cherries for our children's lives, but we provide the core values and life skills so they can make their way in the world.
Then, in walks our government. With all due respect, most Americans know that Social Security is a tax we all pay, but the politicians have borrowed from it and it is destined to be bankrupt by 2019 -- if not sooner. This is not a good scenario for the average American, the blue collar worker or our teachers. We are still paying, but the money may not be there when we are supposed to get our payback. We are all paying into the system, but the system has a fault line that could swallow us all.
Unbeknownst to most folks, that sneaky giant acronym ERISA (Employee Retirement Income Security Act) rears its' ugly head. What is ERISA? ERISA sounds innocuous and can be found in most working Americans' health, life and disability policies we get from work. Take a minute and look at one of your policies or certificates of insurance and you will see it buried in the fine print.
Most of us have no idea what has been taken from us. Did you know if you get your insurance at work that most of you have given up your constitutional right to a trial by jury if your insurance company wrongfully delays or denies your legitimate claim? Did you know that if you lose your house, get behind in your bills, your car is repossessed and you have to file bankruptcy because your group insurance company wrongfully delayed or denied your benefits there are no punishment damages under ERISA? If you're worried about your good name, stellar credit rating and equity lost as a result of your group insurance company's wrongful denial, there are no emotional distress damages under ERISA. Shocking, isn't it? More unbelievable: It doesn't matter whether you are the CEO or the secretary. ERISA applies to everyone with group insurance benefits that doesn't work for the government, a school or a church.
The Employee Retirement Income Security Act was passed in 1974 and has been on the legal books without change. ERISA was supposed to help employees. Now, when employees are wrongfully denied their benefits, ERISA forces the disabled or sick insured to administratively appeal within stringent time guidelines. Sounds simple, doesn't it? Gee, the insured thinks there must have been some mistake. All I need to do is write a one-line letter to the group insurer asking them to review on appeal their adverse decision. Unfortunately, what the group insurer fails to tell the insured is that the burden of proof shifts to the insured once the carrier denies their group claim. On administrative appeal, it is up to the disabled or sick insured to gather all their medical records, supply all their diagnostic testing, and provide all of their prescriptions and objective proof that the medications have caused side effects, along with detailed and comprehensive doctor reports refuting the insurance company's denial decision. What disabled and sick insured group worker has the stamina, know how or ability to take on a billion dollar group insurance company? Group insurers know sick people don't fight hard and the disabled can't last very long. They know most of us just ask for the company to review what must have been a mistake.
Unfortunately, once the administrative decision is made, the record is closed. Most people say, "Well, my doctor, my friends, my co-workers will be able to come to trial to testify in the lawsuit, right?" Wrong. Under ERISA, there generally is no discovery, so no one is getting deposed; no one is coming to court because there is no trial by jury.
Under ERISA, the Federal court will look at the closed record and decide whether the group insurance company is wrong based on a reasonable doubt standard. If there is some doubt, a little doubt, any doubt under ERISA, the insured loses his or her case. That's not fair, many people say. If I had known there was no discovery, and I had to submit everything that proved my case during my appeal, I would have done it. Too bad, as it's too late under ERISA once the record is closed; no new evidence is considered.
So, the highly acclaimed ERISA, sold to Congress as a quick, fair, easy process where lawyers would be removed from the system, has been turned on its ugly head. ERISA, designed to help the little guy, now is the standard to which all regular folks, your friends and neighbors who get their insurance at work, get cheated.
ERISA is the devastating reality in the life of disabled or sick Americans with group insurance. When wrongfully denied their benefits, group insureds are forced to beat the criminal standard of beyond a reasonable doubt to win their ERISA case. The ERISA restrictions are so skewed on the side of group insurance companies that it's rare for a regular person to get what they rightfully deserve.
As the health care bill is being pushed to the forefront, everyone needs to rethink ERISA. It is time to reshape a law that was designed to help all of us working Americans. Group insurance companies have enjoyed a 35-year windfall. We were all told our premiums would go down; simple people would get real relief without burdening and clogging the legal system. We have been tricked, the American worker has been cheated and it's time to regain what has been taken from us.
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