Phone: (302) 565-6100 (call or text)

Fax: (302) 565-6101 

©2020 Kimmel, Carter, Roman, Peltz & O'Neill, P.A.

Workers' Compensation Forfeiture: Factors That May Prevent You from Receiving Workers' Comp Benefits

May 7, 2015


Delaware has a broad policy to provide Workers’ Compensation benefits to employees who are injured on the job. However, there are several situations that employees should be aware of that can result in forfeiture of their rights. Unless otherwise mentioned below, it is the employer’s burden to prove that the facts of the case support forfeiture of benefits.

One of the goals of the workers’ compensation system is to ensure that injured workers get the medical treatment they need to attempt to return to gainful employment. If a claimant refuses to undergo “reasonable” treatment recommended by his or her medical providers, there can be a forfeiture or suspension of benefits. The employer must show that the services refused are reasonable and that the refusal of services is causing injury and/or increasing the injured worker’s incapacity.




Even someone who is unfamiliar with the law might guess that being injured while intoxicated at work might have an impact on workers’ compensation rights…and they would be right. However, proof of intoxication is not enough on its own to result in forfeiture. The employer must also prove that the injury occurred “as a result” of the intoxication. For example: if an intoxicated worker was seated at his desk and the office building he was in collapsed, he would probably not have forfeited his workers’ compensation rights due to intoxication. On the other hand, if a pizza delivery driver is intoxicated and due to the impairment, swerves off the road and strikes a tree, he probably has forfeited his workers’ compensation rights.


Deliberate, Reckless Indifferent, and Willful Actions


From a public policy standpoint, the law provides for forfeiture of workers’ compensation rights when an employee is injured due his own deliberate, recklessly indifferent, and/or willful actions. For example, if the employees of a hotel valet service decide to use the customers’ vehicles to drag race and are injured in a collision, forfeiture of rights could be argued because drag racing is a deliberate and willful action that is recklessly indifferent to their own safety.


Willful Failure or Refusal to Use a Reasonable Safety Device


Some jobs, such as construction, are inherently dangerous. Delaware law provides for forfeiture of benefits if the injured employee willfully failed or refused to use a reasonable safety device. However, if the employee has a justifiable excuse for failing to use the safety device, then forfeiture will not be imposed. For example: if a worker on a construction site fails to wear a hardhat for no good reason and sustains a head injury, he probably has forfeited his workers’ compensation rights. However, if the construction worker had failed to wear the hardhat because it was broken or had been misplaced that day, he probably has not forfeited his rights.


Refusal of Suitable Employment


During the course of a workers’ compensation claim, an injured worker may be disabled from work. However, if the injured worker is physically capable of returning to work and refuses a job that is suitable for the worker’s limitations, forfeiture can be imposed during the duration of the job refusal. The employer has the burden to prove the existence of a reasonable job offer. Unlike the other forfeiture scenarios, the injured worker has the burden of proof to show that the refusal was justified. For example, if an injured worker was released to do light duty work and was offered a job as an insurance agent, the employer might argue that refusal of this job could result in forfeiture of benefits. However, the injured worker could argue that the refusal was justified if, for example, the job required a startup cost of $5,000.00 which the injured worker did not have available.


Total or Partial Disability Benefits and Incarceration


If an injured worker is receiving total disability or partial disability wage benefits due to a work injury and becomes incarcerated in a state, federal, or foreign prison after an adjudication of guilt, those benefits may be suspended during the period of incarceration and resumed upon release. The policy behind this forfeiture defense is that the injured worker is no longer experiencing a loss in wages due to the work injury. Rather, the loss in wages is now due to the incarceration. It is important to note that the employer has the burden to prove that a finding of guilt has been established. Therefore, if an injured worker is simply incarcerated pending a trial to adjudicate innocence or guilt, he has not forfeited his workers’ compensation rights. It is only after an adjudication of guilt that the forfeiture defense becomes active.


Kimmel Carter’s team is experienced in navigating potential forfeiture defenses. Employers frequently attempt to apply forfeiture defenses to fact patterns that do not meet the requirements outlined above. If you need assistance with your workers’ compensation claim, please contact me at (302) 565-6125 or

Please reload


Please reload


Please reload

Follow Us

  • Grey Facebook Icon
  • Grey Twitter Icon
  • Grey LinkedIn Icon