Asking For A Friend: Learn what Workers’ Compensation is with Ben Gerber

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Transcript

Jeb Butler:

In today’s episode of Asking For a Friend, we talk about the law of workers’ compensation. Specifically, I talked with an expert in that field named Ben Gerber, who practices at the law firm of Gerber & Holder, and is a founding member of that firm. Ben’s been doing workers’ compensation law for 20 years. When our firm gets a call in that area, we refer it to Ben because our firm handles personal injury and wrongful death cases, and he specializes in workers’ compensation cases, which are related because they do involve an injury to the body, but different enough to where we prefer to refer those cases to a specialist who knows the ins and outs of that law like Ben does.

So today we’ll talk with Ben about the law in that area, about how to know whether you have a workers’ compensation case, and what to do if you do. Well, Ben, thanks for joining us today. Let’s start out with this. Tell us your name and your law firm and what you do.

Ben Gerber:

My name is Ben Gerber. I’m an attorney over at Gerber & Holder. We’re a small boutique law firm that only does workers’ compensation plaintiffs’ work. That means we only represent those who have been injured on the job. There are six attorneys over at the firm, and we have over 85 years of experience just representing injured workers.

Jeb Butler:

How long have you been doing it? You’re a founder at the firm, I think.

Ben Gerber:

Yes, that is correct. I’ve been practicing law for 22 years now, 21 years in the state of Georgia. I did one year in the state of North Carolina before moving to Georgia. I founded the firm in 2010, and then I joined up with my partner, Tom Holder, in 2019.

Jeb Butler:

What is workers’ compensation?

Ben Gerber:

Workers’ compensation is a statutorily-based area of the law that deals with those who have been hurt while they are working. It’s an area of law that was established in the 1930s. Basically, it limited the amount of liability that employers have when someone gets hurt on the job, but it also provides rights to workers who get hurt while they’re working.

Jeb Butler:

You said it was statutorily created. What does that mean?

Ben Gerber:

It means the government set up laws that specifically governed what happens when you get hurt on the job.

Jeb Butler:

If I’m someone and I’ve been hurt, how do I know whether I have a workers’ comp claim? Is it just as simple as, was I working at the time, or there other things I should think about?

Ben Gerber:

The simple answer is that, if you were just working at the time, that’s all that really matters. The more complicated answer is there has to be at least three employees for the employer to fall under the workers’ compensation statute. There are certain, very specific instances where it would not be considered workers’ compensation. For example, if you were involved in horseplay and got hurt on the job, then it falls outside the purview of workers’ compensation. Or, and this has happened to us before, if you are an individual and you were having a dispute with a co-worker over, let’s say, a relationship-

Jeb Butler:

Like a romantic relationship?

Ben Gerber:

… a romantic relationship and you get in a fight on the job, that is not considered in the scope and course of your employment. That is extracurricular.

Jeb Butler:

I guess the heart of the system if someone who is at work just doing their job.

Ben Gerber:

That is 100% correct. It’s very important to note, it doesn’t matter whose fault the accident was. It could be your fault. You could have misplaced a widget, for example, and you could fall and slip on that widget. It doesn’t matter if you misplaced that widget. So long as you were hurt in the scope and course of your employment, you can recover workers’ compensation benefits.

Jeb Butler:

What if I misuse my equipment? I work at a carpet factory and I’m supposed to use a cutting machine. One day, to be frank, I was feeling lazy, and I didn’t use the safety guard, and I cut my hand.

Ben Gerber:

That’s a very interesting question, and that is a very litigated area of the law when it comes to workers’ compensation. There is a exclusion when you don’t use safety equipment properly. However, it has to rise to such a level that there was almost gross negligence when it comes to not using the safety equipment. I’ll give you an example. Let’s say that I’m required to wear a back brace every day because I’m lifting appliances, and my boss tells me, “Wear a back brace. Wear a back brace.” Well, I’ve worn a back brace over and over again. One day I just simply forget to put it on. I was in a hurry. My co-worker said, “Hey, Ben, come help me grab this fridge. Let’s move it.” That’s not considered gross negligence.

Jeb Butler:

So even though I didn’t put on the back brace, I could still have a workers’ comp case?

Ben Gerber:

You could still have a workers’ compensation case. Another area where you might be precluded is let’s say your job was to, I don’t know, wash windows on the 30th floor of a building outside. You are drilled, “You have to wear a safety harness, and this is how you do it.” You’re told multiple times, and you’re showed multiple times how to use it. In fact, you have worn it improperly before, and your boss calls you down and says, “No, you’re using it the wrong way,” and you say, “Oh, I know better. I’m not going to wear a safety harness. I’m smarter.” Well, in that instance, you might be precluded.

Jeb Butler:

Precluded, meaning, I might not have a case.

Ben Gerber:

You might not have a workers’ compensation case, but it has to rise to such a level that most things fall under the purview of workers’ compensation.

Jeb Butler:

What if I’m not sure? I’ve done something at work, and it was kind of my fault. Maybe I was being dumb about it, or maybe I made a mistake. I just don’t know. Can I call you and ask?

Ben Gerber:

Oh, 100%.

Jeb Butler:

You going to charge me for that?

Ben Gerber:

Absolutely not. Let me give you an example. Let’s say you’re driving your car, and you’re at fault for the accident. You weren’t paying attention, you rear-ended somebody, and you’re on the job when this happens, but it’s 100% your fault. So I’d ask you, would you have a personal injury case?

Jeb Butler:

No. I do personal injury and, no, you wouldn’t have a personal injury case.

Ben Gerber:

Well, you might have a workers’ compensation case, and most likely you will have a workers’ compensation case even if it was your fault. So it’s worth contacting an attorney because we know the areas of the law, especially when it comes to workers’ comp. I tell all my clients, it’s like you trying to play monopoly without knowing any of the rules. You would have no idea what you were doing. You would just roll the dice and move your piece around the board. But we know what the rules are. We know that you’re supposed to buy properties. You’re supposed to put houses on those properties and hotels. There’s Get Out of Jail Free and so forth. We know the rules of the workers’ compensation game. So it’s important to contact an attorney because this law is very, very nuanced and specific.

Jeb Butler:

Well, what if I’m not sure? I call you and you spend time, you have to order records, and you look at information, and then you come back and tell me, “I’m sorry, you don’t have a claim.” How much am I going to have to pay you for that?

Ben Gerber:

Nothing. Workers’ compensation is set by statute by the government. We work on a contingency fee basis. Meaning, if we don’t recover for you, we don’t get any money. It’s set by statute what we can receive. We are entitled to 25% of the settlements of a case.

Jeb Butler:

I’ve heard it’s one third or 40%.

Ben Gerber:

Nope. In the state of Georgia, it is 25% in a workers’ compensation case. In fact, every dollar over $100 in a workers’ compensation case that is recovered must be submitted to the State Board of Workers’ Compensation for review if an attorney is going to make money on that. So an injured worker not only has the protection of the contract, but also they have the State Board of Workers’ Compensation looking at the case to ensure their attorney does not take more than 25% of the settlement.

Jeb Butler:

Let’s say a different scenario. I call you, and you say, “Yeah, Jeb, I think you got a worker’s comp case.” I say, “Great.” We sign up. We work together for six months, and then some judge is like, “Sorry, I’ve decided that Butler loses.” What do I owe you then?

Ben Gerber:

Nothing. It’s all on us. If we lose the case, you don’t owe us anything.

Jeb Butler:

What about this, though? Let’s say I’m at work, and I get badly hurt. I’m walking out of my office, and I slip on some Kool-Aid that my co-worker left on the floor, so it’s not my fault. Can I sue my co-worker?

Ben Gerber:

Unfortunately, in most cases you can’t. Now, the only time you would be able to sue your co-worker is if your co-worker did not work for the same company as you. Let me give you an example. Let’s say you’re working at a big factory. You work for company A at that factory, and someone else works for company B, but you’re both at the same factory, and you’re delivering items to that factory, and the person from a different company backs into you. In theory, in that instance, you would be able to have workers’ comp and sue the person that injured you. But in most cases, you are not able to sue your employer.

Jeb Butler:

Well, I want to come back to that part about two cases at one time here in a minute. Let me give a different hypothetical, a different idea. I’m coming out of the office one day and there is something dangerous about the steps that leads downstairs. Like, some nails are coming out, and the board is loose. I’ve told my boss about it two or three times over the past six months, and they just hadn’t fixed it, so it’s clearly their fault. Can I get more money now or sue outside of the workers’ compensation system?

Ben Gerber:

No, unfortunately you are bound by the workers’ compensation system. Now, let me be clear. There are some exceptions to that, so it’s very important to contact an attorney. I’ll give you an example. Let’s just say that your company does not own the building where you get injured at when you’re coming down these steps, as you mentioned, and a third party owns the building, then you might be able to sue that third party if they were made aware of the faulty steps. But if your company owns the building, you’re stuck in workers’ compensation.

Jeb Butler:

That gives me a good transition, again, to the idea of having two cases at one time. How could that happen?

Ben Gerber:

You can easily have two cases at one time. The easiest example would be, I work delivering parts for an auto manufacturer, and I’m supposed to drive from point A to point B. While I’m in the course of my employment, while I’m delivering those parts, a tractor trailer runs into my back and hits my car. Well, I have a workers’ compensation case. One thing I haven’t mentioned, so I’ll mention it right now, you’re entitled to three things in a workers’ compensation case. You’re entitled to medical treatment, which is paid 100% by the insurance company. You have no copays. You have no parking fees. You have none of that stuff. The worker’s comp carrier pays for all of your medical treatment, but it has to be by an authorized carrier, authorized treating physician. We can get to that in a second if you’d like to.

Jeb Butler:

Yeah, sure.

Ben Gerber:

The second thing you’re entitled to is you’re entitled to indemnity benefits or lost wages while you cannot work. While either a doctor has taken you out of work, or you are placed on light duty restrictions, which your employer cannot meet, you’re entitled to workers’ compensation indemnity benefits. That is up to two thirds of what you were typically making in a week. It is not taxed, but in the state of Georgia, it is capped at $675. However, as of July 1st-

Jeb Butler:

$675, what?

Ben Gerber:

Per week, excuse me, $675 per week. As of July 1st of this year, it’s going to be bumped up to $725 per week. So even if you make a million dollars a year, you’re only entitled to $725 per week under workers’ compensation. The third thing you’re entitled to is called a permanent partial disability rating. That basically means that a doctor will decide how close to getting back to 100% you are from your injury. So if you’re 90% better and that’s as good as you’re going to get, you get paid for that 10% different, and there’s a formula that has been established to compensate you for that. So the three things you can get are medical treatment, lost wages, and a permanent partial disability rating.

Jeb Butler:

So the permanent partial disability rating is designed, I suppose, to cover me for the injuries that I got to deal with the rest of my life.

Ben Gerber:

What is the one thing I didn’t mention in those three things, Jeb?

Jeb Butler:

Say again?

Ben Gerber:

What is the one thing I didn’t mention in those three things?

Jeb Butler:

I didn’t hear anything about pain or suffering.

Ben Gerber:

That’s it. Unfortunately, in workers’ compensation, you do not get pain and suffering. That is the most common question that we’re asked. It’s mind-boggling to many people that, even if it wasn’t their fault and they get hurt on the job, they cannot get pain and suffering.

Jeb Butler:

You may remember this years ago, my firm referred a case to your firm. I had mistakenly told the potential client, I said, “I think you can get pain and suffering in the workers’ compensation. Go ask Ben.” I called him up and said, “I told them this, that they can get pain and suffering, is that right?” He pauses and he says, “I’ll let him down gently.” Let’s get back to this idea of two cases in one. You talked about the tractor trailer, but I don’t really get it. I’ve got two different workers comp cases or what?

Ben Gerber:

No. You have a workers’ compensation case that will pay for all your medical treatment and will pay you while you’re out of work and only compensate you that way. Now, that is money that you’re receiving from the insurance company of your employer. You would also have a third-party case if the tractor trailer was at fault for the accident.

Jeb Butler:

That would be a personal injury tort case, something like our firm might handle.

Ben Gerber:

In fact, they should contact you if that takes place.

Jeb Butler:

Well, I thank you, Ben. I concur.

Ben Gerber:

Then the one thing you can get in that personal injury case you can’t get in a workers’ compensation case is-

Jeb Butler:

Pain and suffering.

Ben Gerber:

… pain and suffering. Now, the beauty of that case is that the workers’ compensation insurance will pay for all of the medical treatment, so the injured individual should not have any medical bills when it comes to their personal injury case.

Jeb Butler:

So you could see that in a crash case, a roadway crash case. Do you see product liability cases in your…?

Ben Gerber:

Fact, we do. Jeb and I are presently working on a case where an individual was working at a auto shop. Was it a lift for the engine that collapsed?

Jeb Butler:

Yeah.

Ben Gerber:

It collapsed, and it killed an individual, unfortunately.

Jeb Butler:

Then there could be a case against the manufacturer of the lift in addition to the possible workers’ compensation case.

Ben Gerber:

Correct. In an instance of a death, the workers’ compensation case provides income and benefits to the deceased children and/or spouse. There is a list of who gets what money, so it’s important to contact an attorney if there is a death resulting from on-the-job injury.

Jeb Butler:

You mentioned something about approved doctors, and I’ve heard something about medical boards, but I don’t know workers’ compensation that well. If I’m hurt on the job, what doctors can I see? Who decides?

Ben Gerber:

Great question. I said earlier on that the most common question asked of us is, can I get pain and suffering in a worker’s comp case? Well, the second most common question is, “I got hurt on the job. Can I go see my own doctor?” The simple answer is, no, you can’t go to your family doctor. You have to go to a doctor on the panel of physicians. Now, the panel physicians is six doctors, unaffiliated doctors, who the insurance company has to provide to your employer. That should be posted somewhere in the break room. Typically, it’s on a pink sheet of paper. I’m sure Jeb has it in his break room downstairs.

If someone gets hurt on the job, they can treat with any of those doctors. It is their choice. It is not your employer’s choice, and it is not the insurance company’s choice. That is extremely important because typically when you’re hurt on the job, the very first thing the employer is going to do is tell you to go take a drug test. If you get hurt on the job, the very first thing you should do is get medical treatment. We can deal with the drug test later. But you don’t have to go see the doctor they send you to. You’re actually entitled to pick the doctor that you want to go see off that list. There has to be an orthopedic doctor on that panel. There has to be an eye doctor on that panel. There are a bunch of different requirements of the doctors that must be on that panel.

Jeb Butler:

Where does that list come from? Does my employer pick it? Does the State Board of Workers’ Compensation pick it?

Ben Gerber:

Typically, the insurance company and the employer work together on it. You do not have a choice in picking any of those. You can pick a doctor off that panel, but you can’t choose the six doctors you would like to treat. Now, if the insurance company and your employer does not have a panel of physicians, you can see any doctor you want to see.

Jeb Butler:

I’ve got a few more questions here. Here’s one that I’ve heard a few times. If I have a workers’ compensation case and I bring it, can I be fired?

Ben Gerber:

In the state of Georgia, you could be fired for almost any reason when you work for an employer. It is very important… I’m getting to the answer to that question. But let me just say, when you bring a workers’ compensation case, you’re bringing the case against the workers’ compensation insurance company, not against your employer specifically. So I tell all my clients, your employer might fire you because you were hurt. Your employer might fire you because you were injured and you can’t do the job that you were hired for. But if you hire an attorney, typically that protects your job throughout the length of your case.

Let me explain why. If you were hurt and a doctor takes you totally out of work, you’re going to receive workers’ compensation benefits. If a doctor then releases you to light duty work, which means you can’t do your normal job, but you have some restrictions and the employer cannot accommodate you, then you keep getting the workers’ compensation checks, the weekly checks we talked about earlier. If you have been terminated from your job, they can’t hire you again. So even if you’re on light duty restrictions, they can’t bring you back to work if you’ve been terminated. So they have keep paying you workers’ compensation benefits, and the insurance company does not like that at all because it’s their money going out the door. So they’re very proactive in talking to employers. So typically if you get hurt on the job and you hire an attorney, you will continue to be employed throughout the length of your case.

Jeb Butler:

I see. How do I know whether my employer has workers’ compensation insurance? Is that common?

Ben Gerber:

By law, if the employer has three or more employees, they have to have workers’ compensation insurance. Now, let me be clear about one other thing. A lot of times individuals are told, “You’re an independent contractor. I’m going to pay you via W9,” which is a tax form. “I’m calling you an independent contractor. I’m not taking out any taxes when I give you your check each week. It’s your job to take out your taxes.” But under the eyes of the law, you still might be an employee. In fact, in most cases-

Jeb Butler:

Even though I think I’m an independent contractor.

Ben Gerber:

Even if you think you’re an independent contractor, even if you’re called an independent contractor, even if you’re paid like an independent contractor, there’s a 13-pronged step that the courts have basically determined if an individual is a workers’ compensation employee, or if they’re an independent contractor.

Jeb Butler:

13 different questions they have?

Ben Gerber:

13 different questions. Let me give you some of the questions. If you are paid by the hour and not by the job, you are probably an employee. If the equipment for your job is provided by not you, but by, let’s say, somebody else probably… That happens at a lot of construction sites. You show up on the job, and they have all the equipment, but they call you independent contractor. You’re probably an employee, not an independent contractor. If your supervisor controls the time that you’re supposed to be on the job, you’re most likely an employee. If you’re told, “Hey, show up at nine o’clock, quitting time’s five o’clock,” you’re probably an employee. If they provide you with an outfit you have to wear, you’re probably an employee. Now, an outfit can be as simple as a painter’s hat or a fancy T-shirt. That’s it.

Jeb Butler:

So 13 different questions. If I do have a workers’ compensation case and you and I are working together, you’re my lawyer, how much do I need to do? To bring the case, what do I need to do, and what is it that you do?

Ben Gerber:

Well, what you have to do is get medical treatment. As your attorney, we will work together to make sure you’re receiving proper medical treatment. When I say proper medical treatment, I mean treatment from a doctor who can provide a cure for you. Now, that cure might not make you all better. It just might be getting you as good as you possibly can be. But at least a doctor who is not, and this is going to sound horrible but it’s true, owned and run by the insurance company. There are certain doctors out there, unfortunately, who do the insurance company’s bidding and who insurance companies try to steer you to. So it is our job, as your attorney, to make sure that you get appropriate medical treatment to deal with your injury. So your attorney will help you do that.

Jeb Butler:

So basically a doctor who cares about me and who’s not just trying to be cheap for the insurance company.

Ben Gerber:

Correct, correct. That hit the nail on the head right there. Also, typically, when you come to my firm and we’re working with you, we try to steer you away from industrial clinics.

Jeb Butler:

What is an industrial clinic?

Ben Gerber:

An industrial clinic, you probably see them all over the place. They’ve popped up, and people used them a lot during COVID to get PCR tests, like a Peachtree Immediate Care.

Jeb Butler:

Oh, like a urgent care-

Ben Gerber:

Urgent care.

Jeb Butler:

… or a doc in the box.

Ben Gerber:

A doc in the box, exactly, a Choice Care, a Concentra. They definitely provide a service in this society. But when it comes to a workers’ compensation case, I do not believe many of them are equipped with the specialties that are required to deal with an injury.

Jeb Butler:

So you’ll help get me to the right doctor, and I’ve got to actually go to the doctor. What else do I have to do if I’m your client?

Ben Gerber:

Stay in touch with us on a continual basis, telling us if you’ve been offered work, are you working, that you’re receiving your checks on time. As your attorney, we will help submit your mileage you get paid for your trips to the doctor’s offices and to the pharmacy if you have to go, along with parking tickets if you’re charged for your parking when you go to the doctor’s office. You do not have to get your medical records. We’ll get your medical records for you. We will help you pick doctors. If your check is late, you contact us. We make sure your weekly check is coming to you at the appropriate time. If it has been sent late, you’re entitled to penalties under the worker’s comp statutes. We help you enforce your right when it comes to penalties.

Jeb Butler:

Will you keep me updated?

Ben Gerber:

Constantly. Workers’ compensation, and I’m sure you’ve heard, it’s a rocket docket. Meaning, from the-

Jeb Butler:

This is my next question, great.

Ben Gerber:

From the time you file a case until the time you have your first court date, it could be anywhere from four to six weeks. Now, let’s be clear. You’re not going to court at that time. But a court date is set to put pressure on the insurance company. Discovery still has to take place, typically. You still have to see doctors. But the average length of a workers’ compensation case, which we have found, and each case is different depending on the injury, but the average case takes between three and nine months.

Jeb Butler:

That’s significantly faster than most personal injury tort cases like our firm would handle.

Ben Gerber:

Let me explain why. When you get hurt on the job, you have 30 days to notify your employer. Now, notifying your employer can just be saying to a co-worker or a boss, “Hey, I got hurt.” It doesn’t have to be a formal, written notice. Someone could have just witnessed it. It is a very low threshold in worker’s comp for the notice. However, you have to file a claim within one year of the date of accident.

Jeb Butler:

I heard two years.

Ben Gerber:

Wait, it’s a little more complicated than just that.

Jeb Butler:

You take it away.

Ben Gerber:

It’s one year from the date of accident. If you receive medical treatment paid for by the workers’ compensation carrier, you have one year from the date of that last medical treatment to file a case. In other words, if you get hurt, let’s say, on January 1st, 2022, and you receive medical treatment through June of 2022, you have until June of 2022, excuse me, June of 2023 to file a workers’ compensation case. There’s one more however. If you receive indemnity benefits, meaning you get a weekly check either in the form of wage replacement if you’re out of work for a period of time, or the PPD rating, like I was talking about earlier, then you have two years from receipt of that last check to file a formal workers’ compensation case. Simple thing to do, contact an attorney to make sure you haven’t blown a statute.

Jeb Butler:

Well, meaning, waited too long.

Ben Gerber:

Waited too long, yeah. In fact minutes before I came over here, I was talking to an individual who was hurt in 2017. He was freaking out because he hadn’t filed official notice with the State Board of Workers’ Compensation. It’s a specific form. It’s called a WC-14, Workers’ Compensation Form 14. He thought that he had blown the statute and he couldn’t file a case. We did some digging. He last received the check from the insurance company in November of 2020.

Jeb Butler:

So he’s all right.

Ben Gerber:

So he’s all right. So we were able to file a claim, and he can proceed with his workers’ compensation case. I think his wife was very relieved because he had been putting her off for the past nine months in contacting an attorney.

Jeb Butler:

Well, as a married man, I’m glad that you were able to help him. That’s [inaudible 00:27:42]. That’s about all the questions I’ve got. I’ll end with one. You can also add anything else that you want to talk about. If there was one thing that you wish your clients knew before starting the process with you, what would that one thing be?

Ben Gerber:

That’s a fantastic question. Especially when it comes to workers’ compensation, contact an attorney at the outset before you get hurt, not before you’re hurt, right after.

Jeb Butler:

Call you now?

Ben Gerber:

Right after you get hurt. People wait till it’s too long. They say, “I love my job. My employer’s looking out for my best interest.” I don’t doubt that at all. But as I tell every single client that contacts me, insurance companies make money by collecting premiums and not having to pay out on claims. So it might not be your employer’s doing. It might be the insurance company’s doing.

Jeb Butler:

What are some things that you can do if I contact you early that you cannot do if I wait too long?

Ben Gerber:

Help you get to the right doctor.

Jeb Butler:

That’s a big deal. [inaudible 00:28:45].

Ben Gerber:

That is a huge deal.

Jeb Butler:

Some of them may be in the insurance company’s pocket.

Ben Gerber:

Yes. I know we’re getting into real specific, nuts and bolts of the workers’ compensation case, but it’s a prime example. If you get hurt on the job and you’re out of work and you’re receiving workers’ compensation checks. Then your employer offers you a light duty job within the restrictions that the authorized treating physician has provided. You love your employer. You want to go back to work for him. It happens all the time. You go back to work for that employer. You work for 15 days. On the 16th day, they fire you for whatever reason. It could be because the insurance company tells them to. Well, you’ve been fired. We talked about this earlier. They fired you. I’m on light duty restrictions. I should be getting workers’ compensation checks again, right?

Jeb Butler:

I would have thought so.

Ben Gerber:

Unfortunately, if you work for 15 days and you’ve been fired from your job, you are not entitled to receive workers’ compensation benefits immediately. You have to prove that you can’t get a job because of your restrictions, which is almost impossible, quite frankly. So if you had worked-

Jeb Butler:

So I came back to work because I was loyal, and the insurance company has now screwed me.

Ben Gerber:

Correct. The thing is if you work 14 days, you’ll be okay. If you work 15 days, you’re screwed. That’s why I’m saying, if you contact an attorney on the outset, we can work with you to make sure little things like that don’t happen that can hurt you and/or your family and your livelihood and your income.

Jeb Butler:

Well, thanks, man.

Ben Gerber:

Thank you.

Jeb Butler:

[inaudible 00:30:18]. Good to see you. 

Ben Gerber:

Love talking to you, Jeb, always.

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