The Pay Without Prejudice Period (PWOP)
The pay without prejudice period plays an important role in workers compensation cases. It can be found at M.G.L. Chapter 152, Section 8(1)
. It states "An insurer which makes timely payments pursuant to subsection one of section 7, may make such payments for a period of 180 calendar days from the commencement of disability without affecting its right to contest any issue arising under this chapter. An insurer may terminate or modify payments at any time within such 180 day period without penalty if such change is based on the actual income of the employee or if it gives the employee and the division of administration at least seven days written notice of its intent to stop or modify payments and contest any claim filed."
Essentially, what this clause means is that the insurer, by making timely disability payments may do so without accepting liability on the case. From a practical standpoint, what this means to the Employee is that even though they may be getting paid weekly disability checks, the insurer can terminate or modify these payments, simply by providing advanced written notice to the Employee.
This puts the injured Employee in a fairly precarious situation. If benefits are terminated or modified within this period, they, through their counsel, usually, would then have to file a claim to get his or her benefits reinstated. Going through this process can take some time. It is not uncommon for an injured employee to have to wait 2, 3, or even 4 months before they can get in front of a Judge at a Conference. And, during this time period, the injured employee is not getting paid.
It is also important to note that the Insurer may also extend this pay without prejudice to a full year, if the employee agrees to such. They do this by sending the employee a Form 105, PWOP extension form. If an employee signs this form, then the pay without prejudice period is extended to a full year.
What is the practical effect of the pay without prejudice period?
As said above, from the Employee's perspective, it means that even though they may be getting paid weekly disability payments, the insurer can terminate or modify such payments simply by sending written notice.
If benefits are terminated or modified during this period, what need to be done?
At that point, the injured employee needs to file a claim at the Department of Industrial Accidents
to try and get his or her benefits reinstated. This can take time. Any claim must have a supporting medical note attached along with it. Further, it can be up to 4 months (at times) to get in front of a Judge. Often times, however, the parties can agree to reinstate benefits before a conference. However, it is not guaranteed, and very often, the case must go before a Judge.
What happens after the PWOP period expires?
At that point, liability is established. The insurer has essentially "accepted" the injury. Therefore, any changes to benefits can not be done simply by providing notice. Usually, the insurer must then file their own complaint for termination or modification, and go before the Judge and ask permission to do so.
What is the point of the PWOP?
The reasoning behind this provision of the Massachusetts workers comp law is to help facilitate quick payments to the injured employee, without having the insurer give up it's rights to defend against claims. If, for example, paying benefits automatically meant accepting liability for the injury, it is unlikely that the insurer would ever voluntarily pay such claims. Rather, they would simply deny the claim, and force the claimant to go through the claims process.
It is of vital importance for anyone who sustains a work related injury to speak with an experienced Massachusetts comp lawyer as soon as possible following the injury. You need to ensure that your rights are protected. Individuals who are not represented by a Massachusetts workers comp attorney run the risk of being taken advantage of during this crucial time following a work injury. Don't let this happen to you.
At Troupe Law Office, we have been actively representing injured workers and their families for 50 years. We serve clients throughout all of Massachusetts and throughout all Department of Industrial Accidents including Boston, Lawrence, Fall River, Worcester and Springfield. Call us any time for a free consultation of your case.