Death Benefits (California)

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Death Benefits (California)

Postby carmen@npnlaw on Thu Oct 18, 2018 3:38 pm

IW worked for one week before he was killed in a tractor accident at work. He worked for cash one year prior to the accident. He left his spouse who was totally dependent on him as she didn't work. Does spouse have to prove that IW had an income 12 months prior to the DOI?
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Re: Death Benefits (California)

Postby 50Cal20 on Fri Oct 19, 2018 7:14 am

The surviving spouse enjoys the conclusive presumption of being a full dependent, entitled to the full dependency death benefit of $250,000 plus up to $10,000 for burial expenses. The decedent's past wages are immaterial when it comes to determining the spouse eligibility for death benefits. The rate death benefits are paid is supposed to be equal to the TD rate. However, the WCJ is given wide discretion by law per LC 4702(b) to award death benefits at a higher rate. Regardless of the rate, the total to be paid will equal $250,000.
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Re: Death Benefits (California)

Postby vampireinthenight on Fri Oct 19, 2018 7:48 am

No kids? Baby mamas?
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Re: Death Benefits (California)

Postby carmen@npnlaw on Fri Oct 19, 2018 7:53 am

No kids or baby mamas. The DA is saying that wife can't prove that her spouse supported her because he worked for cash 12 months prior to his death. Basically he was a self-employed fruit vendor making $10,000 per year. Wife can't verify this income. They did pay rent and he did pay his wife's medical treatment for diabetes.
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Re: Death Benefits (California)

Postby mytwocents on Fri Oct 19, 2018 9:48 am

Like 50Cal20 said, there’s a conclusive presumption that a spouse was a total dependent as long as they were legally married and the spouse earned less than $30,000 in the preceding 12 months, per Labor Code section 3501(b). She and the deceased could have been separated for years and she could have been living with someone else on the other side of the country and she’d still be a total dependent if those two conditions are met. The DA is wrong if he thinks she has to prove that the deceased spouse supported her.

There’s no requirement in the Labor Code for evidence of the past year’s earnings if at the time of injury, the deceased was working a permanent job for at least 30 hours a week. TD and thus death benefits are wage replacement. They’re supposed to be based on a prediction of what the person would have earned if he hadn’t been injured. If he wasn’t selling fruit any more, that work is no longer relevant to what his future earnings would have been. His TD rate would be governed by Labor Code section 4453(c)(1) which says: Where the employment is for 30 or more hours a week and for five or more working days a week, the average weekly earnings shall be the number of working days a week times the daily earnings at the time of the injury.
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Re: Death Benefits (California)

Postby carmen@npnlaw on Fri Oct 19, 2018 10:10 am

Problem is that IW was killed on his 2nd day of work. But for his accident, he would have worked 40 hours a week based on the contractor that hired him. Prior to that he was self-employed fruit vendor.
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Re: Death Benefits (California)

Postby jpod on Fri Oct 19, 2018 11:14 am

I don't think that matters unless the job had firm beginning and ending date when he was hired; even then I don;t think it matters.

I am confused about the defense b/c if there were no dependents the $250,000 gets paid to the Death Without Dependents Unit. One way or another if the death is AOE/COE benefits have to be paid by the employer to someone, the question is who or what not if.

If DA is asserting no minor dependents ask for a copy of the DIA 510 form which is required if an "employee" (not injured worker mind you) dies for any reason (occ or non-occ doesn't matter) and the employer knows or has reason to believe there are no minor children.
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Re: Death Benefits (California)

Postby vampireinthenight on Fri Oct 19, 2018 12:56 pm

Agree, proof of fruit sale income is irrelevant.
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Re: Death Benefits (California)

Postby 50Cal20 on Fri Oct 19, 2018 1:17 pm

This appears to be a slam dunk case. It doesn't matter that the decedent was killed on the second day on the job. It's compensable regardless of the employee's past wages. The spouse, who has no income, is conclusively presumed to be a total dependent since she earns less that $30,000 per year. Doesn't the defense attorney know what the definition of "conclusive presumption" means? It means it if the conditions exist (which they do), entitlement to the death benefit is not rebuttable. No amount of evidence in the world can rebut a conclusive presumption. My goodness. File for an Expedited Hearing to get the death benefits the widow deserves. You may even want to throw in a penalty petition.
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Re: Death Benefits (California) (California) (California)

Postby mytwocents on Sat Oct 20, 2018 1:39 pm

Clearly your client is a total dependent and clearly, she’s entitled to a total death benefit of $250,000. The question that remains is the weekly rate at which that death benefit will be paid to her. You say, “But for his accident, he would have worked 40 hours a week based on the contractor that hired him.” If that job was to continue indefinitely, then she gets the TD rate based on his job at the time of injury every week until the $250,000 has been paid out.

However, the fact that a tractor was involved and he was hired by a contractor makes me think he might have been an agricultural worker hired by a farm labor contractor. A lot of agricultural employees are seasonal workers. If that’s the case, she only gets the TD rate based on his job at the time of injury for as long as the season lasted. For the rest of the year, you’ll have to establish what his probable earnings would have been. If he would have had no earnings during the off season, she gets no benefits until the season begins again. If he planned to go back to selling fruit during the off season, then the fruit selling earnings become relevant. If he planned on getting another agricultural job, it would help to know how he was going to go about that. Even if your client has no documentation, her testimony might be good enough because they had to have something to live on and any earnings during the off season would entitle her to the minimum TD rate.

You need to get the facts straight with your client before the defense attorney claims he wouldn't have had any earnings in the off season and your client is left with no benefits for part of the year. In fact, that would explain why he's demanding proof of earnings in the prior year. Don't forget that in this scenario, the FLC is the employer so he may not be motivated to say he would have found work for the deceased in the off season. His insurance company would rather pay out the money over a longer period of time than a shorter one.
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