Photo by Amy Cantrell.
Frank Darras has long been known as the top disability lawyer in the country, having devoted his career to helping sick, injured and elderly policyholders – whether blue-collar workers or corporate executives – take on giant insurance companies. Recently, Darras has added a new type of client focus with what he considers to be an overlooked group – amateur and professional athletes.
As a former student athlete, Darras was personally affected by injury, losing the sensation in his fingertips after an industrial accident, which cost him a Big 10 football scholarship. He had to put himself through college and law school instead taking on odd jobs, an experience that has shaped his legal career since. Today, DarrasLaw has become one of the most vocal and strongest advocates for athletes in the country.
Lawdragon: We know you’ve been focusing on one area that’s getting a lot of publicity lately, professional and amateur athlete disability representation. How different is that from representing truckers, dockworkers and blue-collar workers?
Frank Darras: We do a tremendous amount of consulting and representation of professional athletes in the disability context. For the high round draft eligible athlete, we recommend they have draft slot protection because falling out of the first couple of rounds of the draft could cost them millions in signing bonuses, salary and endorsements. We also strongly recommend college and pro athletes have bulletproof career ending disability coverage so if they get sick or injured they can replace their career potential earnings with a lump sum from their disability insurer.
Aside from the dollars at stake, representing professional athletes or my truckers and dockworkers is all very similar. When you strip away the money, everyone needs a zealous advocate that believes their restrictions and limitations are real, that the treatment they received was the very best they could afford and despite giving it all they had, they were unable to return to work. We bring in the same experts in a $1,000 a month case as we do in a million dollar a month case. The industry knows when we represent a modest earner they can’t snuff out the smaller damage cases by trying to outspend us. Carriers also know we have the best seat in America when it comes to picking who we want to represent, so for me it has always been about representing great people and never about the money.
LD: What’s the best advice you can give athletes?
FD: My best advice to up-and-coming athletes when it comes to disability insurance is to make sure you really know you’re protected. When your advisor and agent are talking about what you’ll earn when you sign make sure you have real protection in place if your career is cut short by injury or sickness. Too many times I hear, “Frank, I had no idea. I left that to my people or my handlers.” Don’t let a career ending injury push you to the sidelines without a policy that truly protects you and all you worked for, in place.
LD: What’s the most common misconception people have about the kind of law you practice?
FD: The most common misconception is that our practice includes workers compensation or representing people seeking Social Security benefits.
LD: You’ve been doing disability and long-term care insurance law for over 28 years now. How has the practice changed over the years and how have you adapted to the changes as a lawyer?
FD: Twenty-five years ago there were several hundred different insurance companies actively competing for the individual and long-term disability billion-dollar premium pie. Policies were chock full of tremendous features, advantages, generous language and extraordinary benefits. Carriers were insuring 70 percent of an individual’s annual earnings that included bonuses, overtime, commission and even full pension contributions. Occupation-specific coverage that paid a rich monthly benefit, even if the insured could do other gainful work was the norm. Those overly generous policies had no limitations for mental-nervous conditions and would often pay for the lifetime of the insured for an accident or sickness. By 2000, carriers were getting crushed, insureds became disabled and unfortunately for the industry, these contracts were non-cancellable. Litigation swamped the system as insurance companies looked for a way to bail out.
The hardest change, however, has been the application of the Employment Retirement Income Security Act (ERISA) to long-term disability. The rule applied to group long-term disability unless you worked for the government, a school or a church. ERISA eliminated everyone’s 7th Amendment right to a trial by jury; eliminated emotional distress and extra-contractual damages; precluded discovery except for the production of the “administrative record” which included what the carrier gathered before denial and what the insured submitted before the appeal of the denial was upheld. The standard of review also changed from a preponderance of the evidence to a more onerous, arbitrary and capricious review, making winning disability cases even more difficult.
LD: What about the mix of cases?
FD: The mix of cases today has shifted away from the avalanche of punitive damage verdicts in the 2000’s while the volume and number of ERISA denials has skyrocketed. Policyholders still have no real understanding of how ERISA works and today fatal mistakes are often made before they reach a terrific disability attorney. Think about it, if you are unable to work because you’re so sick or so injured and you’ve gotten the right care from the right doctor, gotten the right tests, taken the right medicine and your long term disability carrier denies you benefits that put food on the table, gas in the car and a roof over your kids’ heads, you’re in real trouble. Once the claim is denied the disabled insured loses her insurance so all the treatment, medication and testing must be paid for with cash. The cash is gone because the policy only paid 60 percent of what they were earning and the co-pays ate up the insured’s financial reserves.
It’s a nightmare that is becoming a reoccurring reality that’s being played out all across America. Denials come to the disadvantaged and disabled when they are the most vulnerable and then they must take on a billion dollar insurance company in federal court under ERISA? More policyholders must be educated and clearly understand after denial the administrative appeal is where they must include all medical testing, prescriptions, doctor support letters, occupational and vocational expert opinions supporting both the physical and mental demands of their work along with a comprehensive legal attack on the policy and its limitations or the record will be closed. Under ERISA, if the insured doesn’t level the playing field on appeal no additional evidence is later allowed and the record is closed. Unfortunately, too many long-term disabled insureds submit a one line appeal…”I am appealing your decision” and they get absolutely annihilated.
LD: Are there more contentious legal battles for coverage than in previous years or are insurance companies more likely to settle these days?
FD: As far as legal battles go, there is less individual disability litigation across the country because carriers have learned the hard way, that punitive damage verdicts are expensive. On the ERISA front, carriers have tried pushing policy issues like limiting soft claims for fibromyalgia to 24 months of benefits where there is no definitive blood test or X-Ray to objectify the diagnosis; appropriate care for the condition causing disability has also been a hot button for the insurance companies. Carriers no longer want someone disabled from carpal tunnel syndrome or ulnar problems without the insured submitting to surgery. Since none of the current policies require the insured to submit to invasive testing or have curative claim ending surgery we are literally litigating body part by body part. In the end, my guess is it will be a risk vs. the benefit analysis but it’s a developing story with no current ending.
LD: Is it more effective and smarter to mediate cases than going to trial?
FD: Mediation in the disability world is flourishing as more carriers recognize hard litigation costs can exceed $250,000 to work up a high stake case for trial without attorney time. Successful mediators have a keen understanding of the policy provisions and contractual language along with a great working knowledge of the medical and vocational issues that frame the litigation. At DarrasLaw, we work our cases up for trial and if the carrier wants to mediate and they have been honorable and respectful in the past, we welcome the opportunity to try and reach a fair resolution.
LD: Any course in law school that you found particularly helpful when you started practicing in this area?
FD: I worked my way through college as a paramedic so the medicine always came easy for me. But trial advocacy, moot court and knowing the rules of evidence, those are priceless.
LD: What advice can you give aspiring lawyers who are thinking of pursuing this line of practice? How do you develop a book of business, for example?
FD: For the aspiring lawyer pursuing a career litigating individual and group disability and long-term care, think about how you are going to build your client base while earning the respect of the insurance industry. If the carriers don’t respect you, your values or how you litigate they will beat you up, wear you down and eventually starve you out. So be passionate, stand up for those who can’t, represent the disabled insured that no one else will because it’s too hard or too expensive or too complicated.
Developing the book of business is the easy part because everyone needs disability insurance if they are working and when they stop working and retire they will always need long-term care. The difficult part with a national litigation practice is the travel. Living out of a suitcase and traveling 100,000 miles a year can get old in a hurry.
LD: What do you do for fun?
FD: I’ve been very lucky, this year my wife and I are celebrating our 31st wedding anniversary. We’ve been blessed with 2 Division 1 athletes, my daughter graduated cum laude from the University of Missouri and was a golfer. My son is a baseball player at University of Connecticut. So, we spend a lot of time with our children. I also am training for the Canada Iron Man.