Death Benefits (California)

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Re: Death Benefits (California)

Postby carmen@npnlaw on Mon Oct 22, 2018 3:51 pm

defendant carrier states: "as you are aware, benefits and dependency are calculated by the earnings at the time of death. Decedent worked 3 days prior to his death in 2017 and his total earnings for those 3 days was $275.00. It cannot be founded how decedent was providing support to spouse without earnings documentation for the years 2016 and 2015. Unfortunately, we do not have a clear documentation to support the level of support that spouse received."

Am I missing something here? Decedent worked for cash in 2016. Only he could substantiate his earnings for that year. I do have a rental agreement indicating that he paid $475.00 per month to rent a room and his wife's doctor bills and medicine. This obviously shows proof that he did have an income coming in.
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Re: Death Benefits (California)

Postby steve appell on Mon Oct 22, 2018 10:58 pm

As stated by everyone else, the prior earnings are irrelevant. If not but for the death, applicant would have worked 40 hr per week at least @ min wage = $480 earning capacity = $320 TD rate...….. Argonaut Ins. Co. v. Ind. Acc. Com. (Montana) (1962) 57 Cal.2d 589

Late
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Re: Death Benefits (California) (California) (California)

Postby mytwocents on Tue Oct 23, 2018 8:14 am

Yes, you are missing something here. That may well be what the defendant carrier is telling you but they are just plain wrong. As the widow’s attorney, it is up to you to make sure your client is paid properly and in a timely fashion. If you can’t persuade the carrier to comply with the law, you have to get the WCAB to do it. Here's what you don't seem to understand: 1) Your client is a total dependent whether he supported her or not, AND 2) The past earnings are only relevant to the extent that they serve as a valid predictor of what he would have earned absent the injury/death. If he had no plans to go back to selling fruit, the past earnings are irrelevant. Labor Code section 4453 governs the calculation of the average weekly wage (AWW) for TD and death benefits. You need to read it. You also need to read the Montana case cited above. If the job was to last indefinitely, the AWW is based on his weekly earnings on the job he had at the time of injury. If he was a seasonal worker, there are two AWWs: one for the season and another for the off season. [See Jimenez v. San Joaquin Valley Labor and Signature Fruit v. WCAB (Ochoa)] Two years have passed and your client has yet to receive any money on a case that’s a dead bang winner. You might want to associate in an experienced applicant attorney.
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Re: Death Benefits (California)

Postby vampireinthenight on Tue Oct 23, 2018 9:16 am

Love how the carrier says they have to calculate earnings at the time of death and then proceeds to look backward over the prior year.

If they admit a minimum rate, are they at least paying that? Have you demanded that? If not, that's a nice little 10%-25% bump.

I would SDT the employment records (assuming they are asserting a limited employment situation). And also, did he have a bank account? Bank records could be useful.
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Re: Death Benefits (California)

Postby 50Cal20 on Wed Oct 24, 2018 1:14 pm

Don't forget that the minimum death benefit payment is $224 per week. Death benefits are usually paid at the TD rate except for the minimum rate. Like I said, the minimum death benefit rate is $224 per week but again that's just the minimum. I certainly would argue that benefits in this case should be paid at a much higher rate and if the issue goes to a judge, then the judge can order benefits paid at any rate he/she so desires.
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Re: Death Benefits (California)

Postby vampireinthenight on Thu Oct 25, 2018 8:49 am

Oh yeah? I didn't know there was a different minimum. Thanks for clarifying.
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