Attorney David Heffernan of Kaire & Heffernan talks with Attorney Jeff Rubin of Talianoff, Rubin & Rubin about Workers’ Compensation

On Behalf of | Sep 14, 2021 | Podcasts

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Welcome to another episode of First off, let’s kill all the lawyers. That phrase was written by Shakespeare back in the 15th century that drew raucous applause and laughter when it was uttered. And even today still does. As people contemplate, it’s not a bad idea to kill all the lawyers. I’m David Heffernan, I’ve been practicing law here in South Florida for about three decades. The goal behind these broadcasts is quite simple. Bring in local lawyers in varying aspects of law, get to know a little bit about them, why they got into law, what they did, and maybe just maybe, by the end of the show, we can take one off the list to save that lawyer. This morning, I have the pleasure of having not only a really good lawyer, but a good friend and possibly one of the nicest human beings I’ve ever known. Jeff Rubin joins me and, Jeff, you’ve been doing this a long time local guy, we got a lot to talk about. But let’s just start off with how did you wind up becoming a lawyer?

It’s probably a family thing. The name of the law firm is Talianoff Rubin and Rubin. Talianoff is my maternal grandfather. And my maternal grandfather and my father actually practice law together back in the 60s and 70s. Having the family aspect of it, and then, you know, so sort of predestined that I would become a lawyer, enjoyed law school and went to Miami, loved it back in the back in the 80s, and graduated in 89. And then soon after that, my grandfather was thinking about retiring, so it was an opportunity to join the firm. And then eventually, the firm name became Talianoff, Rubin and Rubin. So, it’s a family tradition. For about three years, we actually had three generations walking in the office.

Let’s talk about what they founded and then what type of law were they doing when they first started?

My grandfather was really in the collection business, he did a lot of retail and commercial collection was very involved in local community organizations and collection agencies throughout the country. And he started something called the commercial law League of America. And that was the aspects of his types of law, he did lead to some probate and some wills and things like that. And then my father was a worker’s compensation lawyer. So needless to say, I learned a lot from them, and, and became a collection lawyer and also a workers compensation lawyer, as well as some general practice.

All right, and we’re going to delve into that sort of pressure that that’s the family lineage, was there ever a thought of doing something else?

Gosh, I guess I look back, I would have probably been like a sailing coach or doing another passion or, or something like that. But, you know, when we went to law school, we went to undergraduate school, David, you know, it was you go to undergraduate school, and then you go right into a profession, but that is, are you going to get your masters you get a professional degree? And that really is not the way it works? I think today, right? I’m finding at least with my son, he went, got an undergraduate degree, worked for a while, and then realize what he needed to get a master’s. So I think, for me, it was just something that I thought was a good thing to do. I wasn’t interested in the other professions, there were really no business aspects in my family of things that I got turned on to. So it was sort of a natural fit. Well, and you’re right, I do see that now. My daughter, for example, has been out in the workforce for a while graduated from Florida State is now going back to get her master’s. Yeah. And I think it actually makes more sense unless you really know what you want to do. I think having some real-world experience, and then going back and go, Okay, how will this benefit me? Because I think a lot of times you got to analyze now, okay, does this further education, and I’m very pro-education. But sometimes I think, you know, people would go from undergrad to some sort of graduate program, just because to continue to become a student. Yeah, that’s not necessary. Okay. This MBA may not help me in what I’m ultimately going to do.

My son and I had the same conversation. He’s now worked for four years now to get his master’s in securities and technology and securities up at Georgetown. And he did not he would have never gone into that program without the four years of experience that he has, right working. Well, I had a gap in there. I did. I got drafted in the NFL. Yeah, I bounced around and played hard knocks before they actually videoed it. You know, I got a lot of hate coach once you bring your playbook multiple times as I bounced around and actually my undergraduate degree was in communications. And so I came back and I was going to, it’s going to work and television and radio and all that until the reality sort of set in that to stay in a TV market. And I’d spent the last four and a half years packing my cart moving from NFL city to NFL city. And I said, Yeah, I don’t want to do it. And so I wasn’t sure what I was going to do when I went to law school. And then much like you, I actually enjoyed law school and have been out of school for a while, and now really applying myself found it fascinating and then got into litigation, and there are so many parallels, right, you know, between athletics and history. That’s right. So, well, let’s talk about worker’s compensation because it’s a thing that happens so much, but I don’t think people really understand it. And so, you know, it’s a legislative scheme. That’s sort of a tradeoff to say, Alright, you can’t sue your employer for negligence unless literally, they damn near murder you. Right, because it’s a hard exception to get by. But talk about what workers comp means when somebody gets hurt. Are they entitled to and how does that work?

Well, I tell clients, it comes down to two different parts, and you break it up into two aspects. You’re right if you are hurt while working. And even if your employer or a co-employee was negligent, causing your injury, you cannot sue your employer, right? That’s the exception. And that’s for the for your ability to receive Workers Compensation benefits. So, it’s a no-fault law. So even if you’re a chef, and you cut off your own finger, while cutting some potatoes, you’re going to receive Workers Compensation benefits. So it’s two aspects, you have the medical aspect, you have the right to receive medical care, while you’re, you know, treating and recovering and trying to get better. And as long as the doctor is treating you when you have not reached what we call maximum medical improvement, you’re getting better, right? You would get that treatment, but you’d also have a right to receive Workers Compensation benefits, workers compensation benefits would pay you roughly two thirds, or let’s say, 60% of your average weekly earnings, while you’re recovering, while you’re getting better, so that you have a chance to get better get treatment, and at the same time receive payments, at least some income coming in. So because you’re not able to work during that time period. All right, and how long can that go on? Great question, you know, you know, in a perfect world, I would not have a job and workers compensation insurance company would be doing everything right.

Where you’re telling the insurance company, don’t do the right thing. There’s a shocking revelation here today that sometimes the insurance companies don’t do the right. That’s why he called me on the show because you wanted me to teach you something I did. Because, frankly, you know, in all my personal injury cases, yeah, the insurance companies are always fair. And you know, they just do the right thing. It’s not like we ever have to file suit and take them to the courthouse or anything like that.

No, not at all. So you know, they’re obviously, very adjusters are very overwhelmed, and things get missed, but they take certain positions. And so in that case, I have a job because my responsibility is to make sure that those medical benefits come in, make sure that they’re paying them the right amount of money, and they’re receiving all of the other benefits under the worker’s compensation, law, mileage, transportation, medication, a wheelchair, whatever, they may need anything from any medical the aspect that they would need. And then, of course, that those benefits last, in most cases, until the employee reaches maximum medical improvement, that’s a medical legal term, when there’s no reasonable chance that you’re going to get any better you sort of plateau in your care, right? At that point, the medical bent, I’m sorry, the medical benefits would continue on a PRN or as the needed basis, but the workers comp benefits for that, you know, not so catastrophic injury would stop. Now, if you have a catastrophic injury, then benefits perhaps could continue beyond that, if you prove what the employees what they call permanently and totally disabled.

And that’s what I was going to ask so you get to MMI maximum medical improvement. Yep. But what if you can’t go back to do what you were doing? In other words, MMI, as you just point out, doesn’t mean you’re back to where you were, it just means you’re kind of as good as you’re going to get based on that injury. And oftentimes, that leaves people in a lesser position with lesser ability. And so what do they do, then? Well,

you know, there’s a, there’s a tough line, you have to draw, and when somebody is personally totally disabled, they have to be pretty catastrophic, because that’s, you know, basically, I can’t work for the rest of my life. And shorts, companies have a very, employees actually have a very strict standard they would have to prove, you’d have to prove you have the inability to get a job within a 50 mile radius of your, of your, of where you live. And you have to have a, you know, job search, unsuccessful job search for a very significant amount of time. And you have to really be able to show to the judge, that you would not be able to work during that entire, you know, there’s no chance that you’re going to be able to get a job under that strict standard. But then you have those employees that you know, hurt their back construction worker. And now they’re never the same person because of that bad back. But they have the ability to do other things. So, it is very, very difficult for cases and those situations to prove that you’re permanently disabled. And unfortunately, you know, you reach maximum medical improvement, your benefits really would stop, and you have a tough row to hoe after that, and benefits may not continue.

Well, is there any aspect? Okay, so in the personal injury world, yep. You know, one of the things that we can recover on behalf of people that get hurt is, is obviously, loss of earnings. That’s easy, you know, I was hurt during this timeframe, I couldn’t work for three months, six months, or whatever. We also can recover loss of earning capacity, meaning, okay, I can go to work and back to work, but not in the same capacity. Now, I’m only earning 70% of what I used to earn. So, if you’ve got somebody like a construction worker, that gets hurt, and that’s all he knows, but he could go work somewhere else, but make less money. Is there any compensation for that?

No. And that’s a real big difference between Workers Compensation benefits and Personal Injury benefits. Because in workers compensation, it’s a system of lost wages. So, there is no pain, there’s no suffering, there’s no, there’s no payment for the fact that you are can’t be the same person or do the same things that you used to do. The only thing that they pay is once you reach maximum medical improvement, MMI, they have something called impairment benefits, and pyramid benefits is the worker’s compensation way of paying the employee for their loss, or their loss in the future. So, for instance, if you at the end of when you reach maximum medical improvement, that’s determined by a doctor, the doctor gives you a percentage of impairment, right? So, if you have a percentage of impairment, let’s say 5%, then what they would pay you is they would pay you they multiply that by two, so five times two would be 10 weeks of impairment, benefits and impairment benefits, believe it or not a little complicated are 75% of your compensation rate. So, it’s basically 75% of two thirds your average

wage, so not 75% of what you’re earning, it’s 75% of that 60%.

Correct. Okay, for 10 weeks, right. And that is that the workers compensation way of paying you for your impairment loss, which is far different in your business, David, where personal injury where you have the ability to recover so many other damages, unlike workers compensation,

but that and that’s what I always explained to people because we’ll get calls and people are significantly hurt, but it’s a job site or something like that. While we’re always looking for potential third parties that we can hold responsible, but I explained to people said, Well, look, it’s sort of a trade-off. Because in the world of personal injury, we have to prove false, we have to prove negligence. And when somebody did something wrong worker’s comp, you have to prove you got hurt while you were working. Right? That’s correct.

That’s all you have to do. As I said, it’s a no-fault law. And far different. So you there’s a, there’s a trade-off. You know, the question is whether or not if you get hurt, you might as well get it while working. But then again, if your injury is catastrophic, in its life, you know, life-lasting, you’re not going to get those benefits, and you’re not going to get the damages that you would get in a case like personal injury.

Alright, let’s talk because I know we’ve, we’ve faced issues with that, and my partner does some workers comp as well. We hear and I don’t want to paint with too broad a brush, but you know, of workers comp doctors, okay, in other words, insurance companies, it happens in personal injury too. But insurance companies like these doctors, so what can you do? or What Can somebody who’s hurt? Do if they don’t think they’re getting the right care and treatment from this doctor? Can

you switch? Great question. Um, the answer is yes, you can switch but you only get one bite of the apple. So, for instance, if you are treating with a worker’s compensation doctor because you have to stay within that family. So, if you get hurt, the first thing that you normally do is we’ll send you to a clinic, then the clinic doctor will try to see you and try to get you back to work, and then maybe make a recommendation to a bad back to an orthopedist or neurosurgeon or something like that. And then that doctor once again selected by the insurance company will treat you. And then let’s say you’re just not pleased with that particular doctor. But you may have a foot injury of a knee injury, UNIVAC injury, you have one chance for one specialty to request a one time change of position. Okay, that’s it. So all you have to do is you send a letter to the insurance company, and they have five days to give you a one time change. If they don’t give it to you within that five days and you can select your own they normally do. And but then if you say I have a bad back, bad knee back bad foot from that injury, you have to sort of select which part of your body

you don’t get to go to somebody that specializes in feet. I mean, your mind but then you’re not going to your back treatment ends. Exactly.

Right. So that’s the only time and once again that doctors within your family, okay, within the family of workers compensation,

right. And if they, do it within the five days again, you’re just going to another doctor they’ve selected That’s correct.

That’s correct. Yeah. So, you know, so yes, you know, there are workers compensation doctors per se You know, you hope that they take the Oh, they take their Hippocratic Oath 100% on that stuff, but at the same time, that’s how they get their business, right? If it’s a workers compensation doctor, and you can certainly tell the difference when you walk into a workers compensation office or doctor that sees workers comp patients, versus maybe it has other types of patients, because it’s a Milhouse, right? Because they don’t pay, they pay workers comp schedule.

So they do invite they do in volume, they don’t invite them. And let’s face facts, the insurance companies want people that are going to get people back to work as quickly as possible. And they should,

right and but in and out. Absolutely. And I think also when somebody comes in, there’s always that thought process from a doctor, they look at that patient a little bit differently. Are they malingering? Are they doing something that maybe they wouldn’t do if they’d hurt themselves playing basketball or getting out of the car, right, or something like that, or trip and fall in a supermarket or something like that?

I think I think that’s as with any sort of benefit, and it clearly is a benefit not to have to, you know, prove fall for your employer and litigate with your employer, which then changes the entire dynamic. But with any benefits that people get, there are always people that are going to try to take advantage of it. And it’s a system that’s well-intentioned, but certainly has flaws.

Yeah. And that’s just human nature, that’s a part of human nature to sort of just do things that you think are going to benefit you. But in the end, I don’t think it really does. Because your true self always sort of comes out. I tell my clients if I had to prepare a client for deposition, and I only had two minutes, the only thing I’d say is I pretend like your mother is asking you the questions. Okay. And your mother knows the answers to every question. And in that situation, then you have to tell the truth because your mother will know when you’re lying and veracity and trustworthiness is the most important thing for both in your business. 100%.

I mean, lately, I’ve never used the mother line, but I might incorporate that now. Yeah, but again, I’ve always, you know, look, truth is the key to all of it, because even things totally unrelated to what the case is, all of a sudden, you lie about something, thinking it has nothing to do with anything. And now collaterally you’re going to get impeached. Correct. your credibility gets drawn into question. And once anybody that’s seeking money, particularly ultimately going to stand in front of a jury, if the issue of credibility starts to go, yep,

it’s done. I completely agree, completely agree. That’s what I’ve tried to teach my clients that way. And I think that it’s, it’s really paid off over the 30 something years in practicing law.

Alright. One of the other things I’ve heard in, in workers comp or washouts, what explains what that is where there’s some sort of payday, and they stop your benefits.

So, most cases end up getting resolved. But unlike in your case, well, you know, if your case goes all the way to the end and a personal injury, a jury or a jury would decide the amount of money that this person would receive, right worker’s compensation, a judge does not determine the value of a case, a judge only determines benefits that may be owed. But there are in most circumstances cases would be resolved or washed out. And what would happen is insurance company you reach EMI, you’re sort of close to the end of the treatment, you know, there’s your days are sort of done with receiving benefits. So, what you can do is you can negotiate that would be my job with an insurance company for a settlement. And the insurance company would pay you a lump sum of money to cover your both your medical care and maybe your future lost wages. And that would be paid for by the by the workers compensation insurance company, an amount of money and then you’re able to take your cut or your cut from the lawyers’ fees and costs and things like that. And it gives the employee a chance to be able to get back to work. They get some money to get sort of up and running. But once again, it only is around those two benefits that you look right medical and indemnity. It does not include those other damages in it like you have in a personal injury case.

Alright, interesting. Let’s shift gears a little bit. Because in addition to being a fine worker’s comp lawyer, you and I, and you instrumental in me getting on the Orange Bowl committee, you’re on the Orange Bowl committee, and more importantly, you served as president of the orange ball committee during the pandemic. Yep. And I got to just say kudos because we got a game off, we actually got a national championship game, even though there’s not directly sort of ours that you know, the strong backing behind it pulled both games off, and just a tremendous job to you. So just talk a little bit about, I mean, I don’t get off on the Archibald committee too much, but it to me and one of the things I think we need to work on, I’m actually going to get jack come on the show, to talk about what the Archibald committee does for the community. But talk about your role as President, and then your role as president during a pandemic.

Well, thank you. I mean, obviously, when I became president, I never imagined that it would be during a year of a pandemic. But I remember sitting in February of 2019 2019, yeah. No, no 2020 right. pandemic? Yeah,

yeah. Started March 2008. Yeah, that year, about a year. So, it’s got we’re almost in 2022 121 days away from that. 2022. That’s crazy. And everybody forgot, like 2021. And they go back to the pandemic and 2020 Yeah, it’s, so we’re sitting Groundhog Day Without any of the humor

in February of 20. And I said, I just don’t want any trauma. I just want everything, no drama, no nothing. So, our CEO Eric palms, says, I think you got a pandemic confronting, like, What are you talking about? And then we were off and running. So, everything that the Oracle had done throughout the year, the game gives us the ability to do everything we do out for the year through the for the community. So, what we used to have been an events and programs and everything for the community basketball tournaments, and high school showcases and youth football. Yeah, everything. I mean, David just goes on and on and on. And then all of a sudden, we’re now you know, shifting gears, repurposing, reimagining. And we’re now you know, helping feed South Florida. And so thanks to our sponsors, who went along with this ride with us, we’re able to do so many different things last year that we never imagined that we would ever do. So, you know, although our organization has been around for 88 years, we’re all about serving the community. We’re about bringing tourism to Miami, bringing, you know, helping the economy of Miami. And we think that we do that, while also having a chance to serve our community. But you know, you’re talking about being present during a pandemic, but you’re all around the people that you’re surrounded by. And fortunately, they have you are set by Secretary that time you still are the secretary eligible committee. And you know, it was your wisdom, because you’re a yes, no kind of guy. And I so much appreciated having somebody like you on the executive board, because we would come to you, you analyze and you give a yes or no, it wasn’t wishy-washy, and it made that year and surrounding myself around people like you so much easier and so much more palatable. Well, I

again, kudos to you because I truly think the leadership you show during this pandemic, because look, everything was brand new. Yes. You know, we do the Orange Bowl all those other years. And yes, there’s always variations we’re trying to evolve. We’re trying to get into different programming, how can we help? What do we do at schools and all that, but there’s a blueprint there. Yeah. I mean, you know, here’s the book. And, you know, you could add a chapter or a page in here, maybe take this page? Well, you got a blank book and went here. Exactly. Oh,

we were redoing budgets. I mean, I can’t ever imagine that in February of last year, I’m thinking that we’re going to do a budget for no fans. 20% of the fans are saving 50% of the fans sad, or no game. that’s never been done before. So we were prepared. We were ready.

Thank God, our CEO, Eric is the king of spreadsheets. Because when you want to start modeling things, I mean, your head will spin as he starts putting these things up, but he is so good at what he does, and we’re lucky to have that. And, and, you know, you talked about repurposing, I just I really think the staff, I mean, the committee itself, and it’s a wonderful collection, but we’re all volunteers. Yes. Okay. The staff did such a great job of repurposing, saying, okay, you know, we can’t have this event. But let’s repackage it. And let’s have, you know, a food bank drive or things like that, and got sponsors to line up. And so, so grateful for that. And

we created what we call aren’t bulk hairs, right? Well, which we never had before. And all of a sudden, we’re like, hey, this really works. And now we’re going to continue aren’t book cares for our community service project for the years to come? So, a lot of things good things develop from it. It’s sort of like making the lemonade and lemon. Right. And that’s what we did.

Yeah. No, and I and I think I think, you know, you look back and you can take a great sense of pride in that. We, we were fluid enough, just to continually roll because daily things changed, you know, I mean, and so you can’t you know, you’re talking we’ve got to project these things months out, you know, when you’re putting on an event like that, you can’t go well, let’s wait till the week before and we’ll figure out whether it’s fans or not. I mean, how do you sell tickets, you know, they did a great job of repackaging and giving deals on sweets so that people could stay in their own little clusters, knowing they were safe, which I do with my family went to the game and had a great time.

And I’ll say this, we did not know if there was going to be a game until that football was kicked, right. I’m not just saying no, I actually mean that because we did not know whether or not a team could that was sitting in a locker room. If those kids had gotten a you know, COVID or whatever it may be. That game was on. Oh, sure. So we really were on pins and needles, as we were really moving up to game time.

Well, all the things we do and it was you know, so North Carolina makes it for the very first time Yep. My son played at North Carolina just a few years ago knows tons of people there. And I’m like, Oh, this would be awesome. Because there’s so many events I could take him to you know at the team hotel and hospitality and all sudden it’s like, no, they’re coming down in a hermetically sealed bubble, they’re going to stay in this little bubble. They’re going to have one or two little practices over here and nobody gets it. That’s it. So, so he didn’t get to any of those events. So, you know, we’ll see. I think we were talking just for started. You know, Mack Brown has done such a great job. I think we’ll see North Carolina again down here. That certainly won’t be there was their first won’t be their last. I

agree. I agree. I mean, they could be ACC champions and everything. But this year, as you know, in your audience that may have some familiarity with college football this year, we will have a semifinal game, right. So, either be one versus four or two versus three. At the Capital One Orange Bowl back got to be what December 31. See here.

Yes, yep. Yes. So please, we assume choice is ever evolving, right. We’re slightly more stable. But you know, we’ve got to get going there. So, what’s the what’s the what’s the greatest takeaway you have? From being president? I know, it was a unique year and everything else. But you look back on it and go, you know, this was the most sort of joyous moment if there is a single moment.

I’ve had some time to think about that, because that’s a question that I’ve pondered. And I will definitely say, who was the people that I had around me? There was never a no, it was always How can I help? What can I do? And I reached out to so many people in our committee and said, I don’t know how to do this, can you lead this, us through this, and they come back to read with recommendations. And they did it with passion, they did it with love. And I think that it made our committee a lot a lot tighter. And it realized that how many great leaders we have in our committee of, you know, some 300 people. So my by far, it was certainly the way that the committee came together and did what they had to do to make it occur so that we would have a game on last year.

And I think that really typifies South Florida. Because if you look at the history of South Florida, when there’s disaster when there’s a Hurricane Andrew, yeah, yeah, a lot of bad comes out to people, but you really get for

that time to see the best. I mean, we will shine in the face of adversity. And that’s, that’s where you see, the leaders step up, you know, we saw suicide and we saw how that community came together with certified suicide a couple months ago, see the Haiti earthquake and see what’s happening there. We saw with what’s what happens in you know, with Hurricane Ida and, and Louisiana. So as these disasters occur, whether they occur in our community, or outside of our community, South Florida, I think is there for our nation.

So, Florida is a resilient, resilient area, the punchline to a lot of jokes, occasionally with Florida, but South Florida like is different from Florida. And that’s a whole different debate for some other time, because I’m like, we’re South geographically, but we’re kind of a different type of city than the rest of Florida.