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Patrick, Esq.
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Experience:  Significant experience in all areas of employment law.
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I was laid off while on disability during a workers compensation

Resolved Question:

I was laid off while on disability during a workers compensation medical leave of absence. since I was not given the chance to return tow work with restrictions can I still collect disability payments?
Submitted: 2 years ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 2 years ago.
Hello and thank you for entrusting me to assist you in the matter. To be clear, is your question whether you can continue to receive worker's comp benefits after you are laid off?
Customer: replied 2 years ago.

No i am receiving disability benefits as WC ran out. Can I continue to recieve CA SDI? This follow up question pertains to an earlier question i asked here. Also here is the history, I asked another question earlier and this is the response I got.

 

my question was:

I am on a workers compensation medical leave in california and was terminated from the company 3 days before i was scheduled to return to work with modified duty. i was called by HR and told not to come in. stating my FMLA ran out,but this is workers comp. also, the company states due to business my position was eliminated but nobody else on my team was laid off. this cannot be legal? What do I do I feel this is discriminatory due to workers comp. I have had two cases with my company and 6 surgeries total. Can they terminate me without trying to accommodate my working restrictions or offer me another job within the company?

 

LAWTALK Answer was:

As regards XXXXX XXXXX's allocation of FMLA leave to a workers' compensation claim, in order to deduct the time spent on WC leave from an employee's annual FMLA leave entitlement, the employer must notify the employee in writing that the workers' compensation leave is designated as FMLA leave and will count against, and run concurrently with, the employee's 12-week entitlement.

Aside from that, the running of the FMLA leave does not allow the employer to terminate the employee solely based on the fact that the FMLA leave period is up---the rules of workers' compensation still prevent the employee from being terminated based on their being gone due to a temporary disability from an on the job injury.

Also suspect is the fact that they claimed your job was cut due to company financial issues. Frankly, it all smell bad, and it appear that you will have a viable cause of action.

In CA, a relatively recent court action resulted in the finding that a person may sue for discrimination based on being terminated because of a work related injury and the need to take time off. In fact, the case is very similar in facts to yours, and I strongly suggest that you first file a formal complaint of discrimination, and also seek the help of a local employment law/discrimination law attorney to assist you.

 

CA law prohibits discrimination in the workplace and you do have a legal remedy.

You will want to file a formal complaint with the CA Department of Fair Employment and Housing alleging discrimination.
You must first make an appointment with the Department to be interviewed, either over the phone or at a local DFEH office. You may call the DFEH at XXX-XXX-XXXX, or apply on line by using the Department's "Online Appointment System." The system will guide you through questions to determine whether an appointment is right for you.

 

Expert:  Patrick, Esq. replied 2 years ago.
Thanks for the additional information.

Temporary disability typically begins when your doctor says you can't do your usual work for more than three days or you get hospitalized overnight. If you were injured after Apr. 19, 2004, TD benefits typically get cut off after 104 weeks from the first payment for most injuries. Payments for a few long-term injuries such as severe burns or chronic lung disease can run for up to 240 weeks of payment within a five-year period.

As stated in the previous attorneys reply to you, you may have a cause of action for unlawful termination. You will likely be able to continue collecting benefits until you recover of 104 weeks pass, assuming you meet all other eligibility requirements.

I sincerely XXXXX XXXXX this information helps you and I wish you the very best of luck. Bear in mind that non of the above constitutes legal advice nor is any attorney client relationship created between us.

Please abide by the honor code of this website by kindly clicking on the GREEN ACCEPT button if my answer has been helpful to you. Thank you very much.
Patrick, Esq., Lawyer
Satisfied Customers: 6693
Experience: Significant experience in all areas of employment law.
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