5855 Sandy Springs Circle
Suite 300
Atlanta, Ga. 30328

Phone     770-952-7770
Fax:        770-952-6775
ken.behrman@behrmanlaw.com

AREAS OF PRACTICE:

Long Term Disability

            If a person becomes disabled and is unable to continue working, he or she may be entitled to private long term disability insurance - either purchased individually or through an employer’s sponsored benefit plan. The long term disability benefit plan can provide the disabled person an additional income, an income while waiting for social security determination of disability or as additional income above social security benefits.

            In Georgia, the laws are vastly different depending upon the type of disability insurance claim.  For example, for an individual policy or a disability policy sponsored by a state, county or local government, generally an individual has to prove disability from his or her own occupation.  If the insurance company refuses to pay a claim within sixty days after reasonable proof of loss (as well as a demand for benefits), and litigation ensues, a jury determines all issues, including disability, penalties and attorney fees.

            If long term disability is sought through a private employer’s sponsored disability plan, the disability claim is governed not under Georgia law but a federal law called the Employment Retirement Income Security Act of 1974 (also known as “ERISA”).  The intent of Congress in enacting ERISA was to protect the interest of participants in employee benefit plans...by establishing standards of conduct, responsibility, and obligations for fiduciaries of employee benefit plans, and by providing remedies, sanctions, and ready access to Federal courts. Unfortunately, after thirty five (35) years of case law, ERISA governed benefit plans has made it much more difficult for an individual to succeed in his or her claim for disability benefits.

            First, prior to any type of litigation, ERISA requires a claim be forwarded to the administrator (generally an insurance company) for a decision regarding disability.  While there is nothing objectionable in allowing an insurance company to render an initial decision, ERISA also sets forth an administrative process that requires an individual to appeal the initial denial of benefits within one hundred eighty (180) days of the decision to  the  same insurer.  Once an insurance company denies the initial claim for disability benefits, it is imperative the claimant seek the advice of an experienced attorney prior to an administrative appeal.  Most cases that can  succeed are lost because of improper documentation during the administrative process.

            A review of the entire administrative record along with a review of the plan documents should be undertaken prior to an administrative appeal.  The insurer generally relies on their own medical physician’s review of the records and the ability to review the opinion is critical, i.e. to understand why the claim is being denied.  Also, the plan documents may change the definition of disability from one’s own occupation to “any occupation.”  Once an attorney reviews all documents, he or she may ask the treating physician their respective opinion, recommend a functional capacity evaluation (to prove objectively why a claimant cannot handle the material and substantial duties of one’s own occupation), retain a vocational expert to determine if there are any available jobs, etc...The administrative appeal is a claimant’s best shot at obtaining disability benefits.  If the insurance company denies the administrative appeal, and litigation ensues, a court will generally only review the administrative record (as seen by the plan administrator/insurance company) and will not allow any additional or new evidence.  Further, failure to file an administrative appeal generally forfeits one’s right to allow a court to hear the matter.

            After the insurance company’s final administrative appeal denying the claim, a plan participant is entitled to seek judicial review.  The majority of federal courts have established the following procedures: (1) there are no jury trials, (2) discovery is very limited and (3) all state law remedies are preempted.  The federal district court issues a judgment on the basis of the administrative record.  While one would think a federal court would make an independent decision, most benefit plans afford an insurance company/plan administrator discretionary authority to interpret plan language as well as to decide eligibility of benefits.  Thus, a court will not conduct a “de novo” review when there is discretionary language but reviews the claim under an arbitrary and capricious standard.  The arbitrary and capricious standard is a much more difficult standard as a claimant generally has to show the insurance company was wrong and unreasonable.  The courts may also factor in the plan administrator/insurance company’s conflict of interest to determine if there was an unreasonable decision.

Personal Injury Law

            Personal injury law can be broadly classified as individuals who seek monetary compensation as a result of another’s fault.  Most injury claims are from automobile accidents, trucking accidents, medical malpractice, nursing home malpractice, premises liability or slip and falls.  Each case must be analyzed on its own to determine liability, compensatory damages (medical bills, lost wages, pain and suffering), punitive damages, and attorney fees.   In addition, there are several additional factors to consider such as the possibility of hospital liens, physicians liens, health insurers reimbursement/subrogation requests and uninsured/underinsured motorist provisions.

Business Litigation     

            Business litigation revolves around contract disputes.   In addition to his long-term disability and personal injury cases, Kenneth Behrman also represents several individuals/companies that have been sued.  Most of these companies are small businesses.