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LawTalk, Attorney
Category: California Employment Law
Satisfied Customers: 37639
Experience:  I have 30 years of experience in the practice of law, including employment law and discrimination law.
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I am 58 yrs old and I have been on California SDI for over

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I am 58 yrs old and I have been on California SDI for over 8 months. Two months ago my employer closed down and I was terminated and given my severance pay. I also filed an accululative trauma claim with workers comp about three months after starting my SDI claim. No action has taken place on my workers comp claim to date.
I have reached the requirements with my pension that I am eligible to start collecting it. My question is will either my pension or my severance pay, which I just recieved, have any effect on my SDI claim or my workers comp claim when they accept resposibility?
Also if workers comp has not taken any action on my claim by the time my SDI runs out I will have to file with Social Security for disability benefits. Will collecting my pension have any affect on SS disability?
Thank you

Good morning,

I'm Doug, and I'm very sorry to hear of your situation. My goal is to provide you with excellent service today. You have asked a number of relatively complex questions and I ask that you bear with me while I explain the interactions between all of these potential benefits.

1. If you anticipate that you will continue to be disabled by the time your SDU runs out, you should immediately file for social security disability (SSDI). It does not matter that you are receiving SDI, you have a right to apply for SSDI, and because getting approval for SSDI often takes 6 to 9 months, the sooner you apply the better.

2, As regards XXXXX XXXXX Pay:

As for a severance package in CA---keep in mind that if the money you get is not stated in a writing as compensation for you giving up any rights you might have to sue the employer--- if it is simply a lump sum of money, or even payments over a period of time to substitute for your lost wages, then EDD will consider it wages and you will be ineligible for SDI benefits until the number of weeks has passed which equals the weekly pay you received before termination divided into the amount of severance pay you receive.

However, as many employers provide in severance agreements, if you have to give up the right to sue the employer for some reason in order to get the severance, then you will be eligible for your SDI benefits to continue.

So if you did not have to waive suit against the company for any reason, you will need to notify EDD immediately of your severance payment and your SDI benefits will stop for the time being. When the money you received as severance equals the amount you would have received had you been working, then your SDI claim can begin again. SO in other words, if you received the equivalent of 5 weeks of wages as severance, and the employer did not force you to waive suit against the employer in the agreement, then your SDI benefit will stop for a total of 5 weeks.

3. Your pension, because it is coming from an employer who was in your base period for the computation of SDI benefits, you must report that income to SDI as well and they will deduct the amount of your pension benefit from your SDI benefits. If the pension benefit is greater than your SDI benefit, your SDI will stop. You will still be eligible for SSDI though---even though you are collecting a pension. Your pension will have no negative effect on your eligibility for SSDIO, and later, your social security retirement benefits.

4. Regardless of whether your worker's compensation case is concluded prior to the end of your SDI, you need to apply for SSDI now.

5. As regards XXXXX XXXXX of Social Security and worker's compensation at the same time:

Your receipt of workers' compensation benefits does have an affect any SSDI that you will receive.

The 1965 Social Security Amendments required that Disability Insurance benefits be reduced when the worker is also eligible for periodic or lump-sum workers' compensation payments, so that the combined amount of workers' compensation and Social Security disability benefits does not exceed 80 percent of the worker's average current earnings. The combined payments after the reduction, however, will never be less than the amount of total Social Security disability benefits before the reduction. Average current earnings are defined as the highest of:

1. The average monthly wage on which the unindexed disability primary insurance amount is based,

  1. The average monthly earnings from covered employment and self-employment during the highest 5 consecutive years after 1950, or
  2. The average monthly earnings in the calendar year of highest earnings from covered employment during the 5 years ending with the year in which disability began.

The lump-sum settlement can be in the form of a commutation or compromise agreement and releases the insurance company or the employer from liability. Such a settlement is a substitute for periodic payments and is subject to the offset. In this situation, the lump-sum is prorated to reflect the monthly rate that would have been paid had the lump-sum award not been made.

In order to minimize any negative effect, it is very important that the worker's compensation compromise Order contain Social Security life expectancy language. This language has no effect on the amount of the worker's compensation settlement itself; all it does is preserve Social Security benefits to the greatest extent possible. The obligations of the employer and insurance company are not changed at all by the inclusion of the language.

The necessary language is as follows, and you must demand that it be included in ANY settlement document that you sign with workers’ compensation:

After payment of the attorney's fees and costs, the claimant will receive the net amount of $____________. The mortality tables set forth in (your state) Code indicates that because the Applicant is age ______, Applicant has a life expectancy of ________ years and ______ months. The amortized monthly benefit received by the Applicant is $_____________ divided by _________ months or $_____________ per month and represents a future income replacement. This paragraph is intended for Federal Social Security purposes only and not for any other purpose.

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Customer: replied 3 years ago.

Thank you for your assistence. This is all very confusing when trying to sort it out. One question I did not see answered was how would drawing my pension affect my work comp case. What I mean is if I am collecting my pension when work comp responds and wants to proceed in settleing my case how is my case affected. In other words would they be able to say that I am not disabled because I am collecting my pension which could indicate I am retired but the company closed down prior to my collecting my pension.

Are you talking about medical benefit and the lump sum permanent disability award?


Customer: replied 3 years ago.

Yes sir. I biggest concern is future medical.


Thanks for clarifying that.

Your pension will have no impact on your medical being paid under workers compensation, or in any permanent disability award you receive.


Customer: replied 3 years ago.

Thank you so much Doug for your assistance. This has been a very troubling period for me. Learning that my job of 40 years is gone while at the same time learning that those 40 years and multiple back and neck injuries may mean that I can never work again has been very stressing. You have been very helpful.