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February 2019

Can You Lose Your Job While on Workers’ Comp?

When injuries or illness occur as a result of the workplace, the primary worry of many workers is often maintaining a steady source of income while recovering. Workers’ compensation claims can mean you continue to receive benefits even while you cannot work due to injury. However, you may worry about whether your employer can fire you while out on workers’ comp. This quick guide will answer this question and more.

What Is Workers’ Compensation?

California state law requires all employers to purchase workers’ compensation insurance for all their employees. In the event an accident causing injury or illness happens in the workplace, workers’ compensation insurance provides the employee with the ability to make a claim and receive compensation for expenses related to the injury. Workers’ compensation claims are not fault-based personal injury suits; if you received an injury, disability, or illness as a result of your work, you may file a claim.

In California, you may file workers’ comp claims to receive one or more of these benefits:

  • Medical benefits. Medical benefits provide compensation for all the expenses relating to treating or curing the workplace-related injury or illness. Doctor’s visits, hospital stays, medications, and even travel to and from appointments are medical benefits for which you can receive compensation.
  • Temporary disability. In the event that your workplace injury resulted in a stay at a hospital or rendered you unable to work for three or more consecutive days, workers’ comp may pay disability benefits. Temporary disability workers’ comp pays ⅔ of your weekly earnings, but must be above the California state minimum. You may receive temporary disability for up to two years, provided you have medical proof you are unable to work.
  • Permanent disability. If you are unable to work permanently as the result of a work-related injury or illness, you will receive a permanent disability payment calculated according to your level of disability. Calculations also take age, occupation, and wages into account. If your disability rating is over 70%, you will receive a life pension, paid biweekly.

Could You Lose Your Job While on Workers’ Comp?

Workers’ compensation provides workers with a way to pay for treatment related to workplace injuries. However, you may be avoiding filing a workers’ comp claim for fear of losing your job, and relying on personal health insurance and sick days to get by. If your condition persists, you may have no choice but to file a workers’ comp claim. Could you lose your job in the process?

Your employer cannot fire you in retaliation for a workers’ compensation claim. In fact, terminating an employee because he or she made a claim is illegal in the state of California. However, your employer can fire you for some other reason while you have an open workers’ compensation claim.

Consider the terms of your employment and whether you are an “at-will” or a contracted employee:

  • At-will employees: Most employees are at-will employees, which means employers may terminate their employment at any time, citing whichever reasons they wish. In return, at-will employees may quit at any time. If you are an at-will employee, your employer may not fire you for filing a workers’ compensation claim, but nothing prevents the company from firing you and citing poor performance, or any number of issues.
  • Contracted employees: If you are a contracted employee, your employer may not fire you for filing a workers’ comp claim. In addition, termination of your contract must meet the terms of the contract itself. Some employers maintain the right to release employees who cannot work, so if your disability exceeds your contracted time, your employer may fire you for violating the contract.

Your employer must continue providing workers’ comp while you recover, and must reasonably accommodate you if you are able to return with workplace restrictions. If you believe your employer terminated your employment in retaliation for your workers’ comp claim, compile all evidence and speak with an attorney regarding your right to sue for employment discrimination.

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Who is Eligible for Death Benefits?

When a loved one dies, family may not think of money first. However, depending on the circumstances, the dissemination of death benefits may help alleviate funeral expenses or even provide for family members left behind. Are you informed regarding your eligibility for death benefits?

What Death Benefits Are Available?

Although the period immediately after a death is a trying time, it is often the best time to do your research regarding death benefits – once the completed death certificate is in your hand, you should begin applications. In most cases, funeral directors can ask surviving families about any death benefits, as well as provide guidance regarding applications. Consider whether your loved one may have been eligible for any of these benefits:

  • Life insurance survivor’s benefits
  • Social Security benefits
  • Workers’ compensation benefits
  • Veterans’ benefits
  • Pension or retirement benefits

While life insurance survivor’s benefits, veterans’ benefits, and pension and retirement benefits are specific to the deceased person’s life insurance plan and place of employment, workers’ comp and Social Security benefits follow a relatively strict set of rules.

Workers’ Compensation Benefits

If your loved one died as the result of a work-related illness or injury, you may be able to collect California workers’ comp death benefits. In order to collect benefits, you must be financially dependent on the deceased and a close member of his or her family. Recipients can include:

  • Spouses
  • Children, stepchildren, and adopted children
  • Grandchildren
  • Parents or parents-in-law
  • Grandparents
  • Aunts, uncles, nieces, and nephews

However, each recipient must depend on the deceased for financial survival. Minor children, disabled children of any age, and spouses earning less than $30,000 per year are automatically 100% dependent. In the event multiple dependents exist, the state will divide benefits between them based on level of dependency.

In order to file a workers’ comp death benefit claim, you must prove your financial dependence on the deceased. You must file claims within a year of the death, and no more than 240 weeks from the date of the original injury.

Social Security Benefits

Social Security distributes two, distinct benefits – the death benefit, and survivor benefits.

The Social Security death benefit is a one-time, $255 payment which can only go to a surviving spouse or child. Separated spouses may still claim eligibility for the benefit if they were living with the deceased at the time of death or were eligible for survivor’s benefits on the deceased person’s work record. SSA declares children eligible in the absence of an eligible spouse, but any children must be eligible for benefits – a minor, an unmarried 18- or 19-year-old in high school, or a disabled, unmarried adult.

Social Security calculates survivor benefits based on the deceased person’s work history – workers earning at least $5,440 per year have earned all four of the work credits possible in a given year. Typically, a worker must earn 40 work credits for Social Security benefits, though the number decreases for younger workers.

Family members most often eligible for survivor’s benefits are:

  • Widows aged 60 or older, including some divorced spouses and disabled widows 50 or older
  • Widows at any age caring for the deceased individual’s children 16 and under, or disabled children
  • Unmarried, minor children or children aged 18 and 19 if they enroll in high school
  • Unmarried, disabled children of any age so long as the disability was present before age 22
  • Stepchildren, grandchildren, or adopted children under certain circumstances
  • Dependent parents under certain circumstances

For both death and survivor’s benefits, you must notify SSA of the death. Most funeral homes will report the death if supplied with the deceased person’s Social Security number. Alternatively, you can call SSA yourself or visit the nearest SSA office in person. For questions about your specific case, reach out to our Orange County injury lawyers at Bentley & More, LLP for a free consultation!

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Exploding E-Cigarette Device Causes Tragic Death

This is an absolute tragedy, a man has lost his life because of an exploding defective e-cigarette. Bentley & More co-founding partner Greg Bentley has been leading the charge in holding e-cigarette companies accountable, handling more than 150 cases against e-cigarette manufacturers and sellers on behalf of consumers who have been injured by defective e-cigarette batteries and devices. “What happened to Mr. Brown is unconscionable, an innocent man has lost his life because of the e-cigarette industry’s greed. Consumers should be aware that e-cigarette manufacturers and sellers continually put profit over safety and are brazen in putting consumers at risk,” said Mr. Bentley. “The lack of regulation of these products is also shocking, but we will keep fighting on behalf of consumers to hold this dangerous industry accountable.” #stoptheecigexplosions

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Can Social Media Affect Your Personal Injury Claim?

Social media is an almost unavoidable part of modern life for most adults, and many people manage multiple social media accounts for various reasons. Most personal injury attorneys recommend their clients avoid social media while they have cases in progress. Giving up the social interaction may be difficult for some, but social media use can potentially endanger a personal injury claim in several ways. Conflicting Evidence One of the most ob... Read More

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