The recent Appellate Division case of Gorman v. Waters and Bugbee, Inc. (App. Div. Docket No.: A-2550-03T1; Approved For Publication February 2, 2005) reviews and defines the law of the Voluntary Tender and provides an up to date checklist for those in a position to approve or recommend a Voluntary Tender in a worker’s compensation claim. The Voluntary Tender section of the statute allows a respondent, often through its insurance carrier, to make a reasonable and timely payment toward permanent disability. Such a Voluntary Tender is deducted from the final award for purposes of determining the final attorney fees. The attorney fee is based only upon the amount awarded in excess of the Voluntary Tender. N.J.S.A. 34:15-64. Gorman firmly established the “bright line” of the 26-week rule as well as approving both an exception to it and defining the nature of a “Hearing” for purposes establishing the end of the Voluntary Tender period. Initially, the carrier must keep in mind the 26-week period within which a Voluntary Tender can be made. One of three dates is used to calculate the time period: the date treatment is concluded, the date a petitioner returns to work (whichever is earlier), or the date of death of an employee. 26 weeks from the date used is the time period in which a carrier can make a Voluntary Tender which will provide a savings on the attorney’s fees. In Gorman, NJM Insurance Company made a Voluntary Tender in the 27th week and proceeded to argue that it was in “substantial compliance” and that it would be reasonable to allow a Voluntary Tender to be made only one day beyond the time period. The court, however, found that the 26-week period was hard and fast, the bright line rule is required by the statute, and therefore no reasons to pay after the 26th week would be “reasonable”. The court did provide a scenario that would extend the 26- week time period. Although not before it in the case at bar, the court noted that a clear exception to the 26-week period was the situation in which the petitioner requests additional treatment and respondent sends the petitioner for a treatment evaluation. In this case, the 26-week time period would be tolled. Just how long it would be tolled was not established. It would be doubtful if another 26 weeks would be required, but it does appear that a Voluntary Tender issued in a reasonably prompt period of time after a treatment evaluation is not too long past the 26-week period. With regard to the nature of a “Hearing” for purposes of invoking the end of the “Voluntary Tender” period, the court noted the language of the Statute: “When, however, at a reasonable
time, prior to hearing, compensation has been offered and the amount then due has been tendered in good faith or paid within 26 weeks…” N.J.S.A. 34:15-64(c). The court noted that the occurrence of a Hearing would end any “Voluntary Tender” period since the State requires that the Voluntary Tender be made “prior to any hearing”. However, the court went on to rule on the nature of the term “Hearing” in its ruling on petitioner’s assertion that two listed court conferences prior to the issuance of the Voluntary Tender were “Hearings” pursuant to the Statute and that any “Voluntary Tenders” made after those “Hearings” would not be valid. The court made the following analysis: An Adjournment of a case because the parties are not in a position to present proofs on the extent of a petitioner’s injury does not constitute a hearing. Put another way, the mere listing of a case to track its progress or to hold a status conference is not a hearing. Thus the two conference dates before the court in that case were ruled not to be “Hearings” for purposes of shortening the 26-week period with regard to “Voluntary Tenders”. However, the court went on to say something about the nature of other conferences which might qualify as “Hearings” pursuant to the statute: Where, however, the parties have assembled their medical proofs to the extent of petitioner’s disability, and are in a position to proceed to trial, the scheduled court proceeding may be the equivalent of a hearing. The Gorman case actually set limits and clear lines for both sides in a Worker’s  Compensation claim. As representatives of respondents, we can ensure that the savings to be realized by making the Voluntary Tender are confirmed by making it timely and by diarying the important time considerations to avoid a
lost opportunity.

– Harry McDevitt, Esq.