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Beware of Voluntary Payments. Be Sure to Hire a Workers’ Compensation Attorney

By: Attorney Jeffrey S. Monaghan

Our Workers’ Compensation Statutes contain a provision, which allows employers or their workers’ compensation insurance carriers to extend to an injured worker a payment called a “voluntary tender” within certain periods of time after a work related accident has taken place. The Statute provides that when at a reasonable time, prior to any hearing, compensation has been offered and the amount then due has been tendered in good faith or paid within 26 weeks from the date of the notification to the employer of an accident or work place occupational disease or the employees final active medical treatment from the accident or within 26 weeks after the employees return to work the employer or its insurance carrier can provide the injured worker with a “voluntary payment”. The purpose of this “voluntary payment” which is to compensate the injured worker for the permanent disability that the work injury or occupational exposure has caused the injured worker. The Statute allows the voluntary tender to be made by an employer to both injured workers represented by a workers’ compensation attorney and those who are not.

If an injured worker who has received a voluntary payment from the insurance carrier is represented by an workers compensation attorney in connection with a particular work injury or occupational exposure or subsequently becomes represented by an attorney and files a workers’ compensation claim in the Division of Workers’ Compensation, when the permanent disability aspect of this ultimately resolves, the insurance carrier receives a dollar credit toward the overall award of permanent partial total disability that the injured worker may ultimately receive.

While the underlying purpose of this statute is laudable, putting money into the pocket of the injured worker as quickly as possible, there are certain issues with the practice of the voluntary tenders that the injured worker must be aware of. 

These issues are particularly important to an injured worker not yet represented by an workers’ compensation attorney for their work related accident.  When the voluntary tender is made to an individual unrepresented by an attorney, often times the injured worker may believe that what has been tendered to them in the “voluntary offer” represents the true monetary value of the injuries sustained in the workers’ compensation claim. In practice, it is highly unusual for an employer or their workers’ compensation insurance carrier to tender to the injured claimant what is considered the true settlement value for the injuries sustained from the accident. Moreover, the injured claimant, when they receive the voluntary tender by the insurance carrier is not told to discuss the payment with a lawyer, and often times the recipient of the voluntary tender assumes that the dollar amount issued by the insurance carrier may well be all that they are entitled to receive.

In addition, often times the insurance carrier will not advise the injured worker of their statutory rights to further medical treatment from the work related accident in the event that their medical condition worsens over a specific period of time, which can contribute to an injured worker remaining unaware of these very important rights to possible future medical treatment. Voluntary tenders made by an insurance carrier to injured workers should be considered for what they are.   A prepayment toward the ultimate monetary value that the injured worker may have sustained from a work related accident. 

An injured worker who receives such a voluntary payment from their employer’s workers’ compensation insurance carrier and who at the time of that payment is unrepresented by an attorney would be well advised to discuss their accident and the injury sustained with an attorney to ensure that all of their possible rights from a workers’ compensation accident are fully provided for.

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